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AN ADDRESS 



History of the Supreme Court, 



-^ * 



DELIVERED IN THE 



HAivi, of the House of Representatives, February 4TH, 1889, 
at the Request of the Members of the Court and of 
the Bar, in Commemoration of the First Occu- 
pancy by the Court of the New Supreme 
Court Building. March 5TH, 1888. 



V / 



By Hon. KEMP P. BATTLE, LL. D., 

President of the University of North Carolina. 




RALEIGH: 

Edwards & Broughton, Printers. 

i88q. 



INTRODUCTION. 



By Hon. Thos. S. Kenan. 



The people regard with favor every effort to preserve the 
history of the State, and of its separate civil and military 
departments of government. A notable illustration of this 
is the process of restoring the records of our Colonial times, 
which is now being conducted by the authority of an act of 
the Legislature, and under the wise and careful supervision 
of the Secretary of State. 

Believing it to be desirable to present to the public, in an 
accessible form, the history of our Supreme Court, the mem- 
bers of the Bar, at a meeting held in this city not long since, 
invited the orator of this occasion to prepare an address to 
that end. His familiarity with the subject-matter, and his 
ability to deal with it, warrant me in saying that their 
selection was an admirable one, and that the discharge of 
the duty thus imposed will meet with entire approval. I 
take pleasure in presenting to you, ladies and gentlemen, 
the Hon. Kemp P. Battle, President of the University. 



ADDRESS. 



Mr. Battle said : 

Gentlemen of the Supreme Court Bench and Bar, Ladies and 
Gentlemen: In tracing the history of the Supreme Court of 
North Carolina, we find that its origin is not the Act of 1818, 
which established it on its present basis, but that it properly 
begins with the first organized government in our State. I 
shall not attempt, however, to give in detail the successive 
struggles by which, from feeble beginnings, has been evolved 
this great tribunal, which controls so largely the peace and 
happiness of our people. I can attempt only a general 
review. 

There are no records of any courts in the Provincial period 
under Governor Drummond, prior to the assumption of the 
government by the Lords Proprietors, and for some years 
after the grant of their -charter. I have no doubt of there 
having been such, because English people, whenever and 
wherever they settled — in the forests of Germany before the 
dawn of history, in the lands wrested from the painted 
Britons, in the wilds of America and Australia, South Africa 
and India— have never failed, moved by divinely-implanted 
love of order, which has made them great, to have the germs 
of an executive, legislative and judicial power; but the 
records of those courts have been, probably, forever lost. 

It might have been expected that there would have been 
inaugurated for the judicial system a copy — at least, a like- 
ness — -of the English system, but the grant of Carolina to 
the Lords Proprietors in 1663, enlarged in 1665, substituted 
for the king, as the fountain of all justice, eight sub-kings. 
They were vested with all the royalties, properties, jurisdic- 
tion and privileges of a county palatine, as large and ample 



6 History of the Supreme Court. 



as the county palatine of Durham. The Bishop of Durham 
possessed in old times an imperii nperio^ He created 

barons, appointed judges, convoked Parliaments, levied taxes, 
coined money, granted pardons, erected corporations, and, 
although his powers had, to some extent, been curtailed by 
Edward I. and Henry VIII., many of them survived even to 
the reign of William IV. The Proprietors claimed, in fullest 
extent, the exercise of these prerogatives. Alter four years 
of provisional government, with entire confidence of sucee— 
they proceeded* in 1769, to put into operation the extraor- 
dinary scheme called the Fundamental Constitutions of 
Carolina, fondly described by them as the " Grand M del.' 3 
There could not possibly be a more striking proof of the 
truth that all good governments are slow growths, the 
product of the struggles and compromises of intelligent and 
well-meaning men, than this abor ive product of Lock- 
metaphysical brain. Locke was a learned philosopher, and 
most of the Lords Proprietors were men of large experien ce 
and ability in various fields of human activity, one of them, 
Shaftesbury, of extraordinary genius, but their attempt at 
government was so unsuited to the people for whom it was 
intended, that it met with their scorn and resistance, and 
the historian's ridicule. 

These Fundamental Constitutions of Carolina were elabo- 
rately framed, on this principle, that the Proprietors had 
kingly authority, and were not subject to the Crown in the 
exercise of- their government. The Supreme C urts created 
by that instrument were to be presided over by one of them 
in person or by deputy. Contrary to the statements of the 
historians of our State, this system was not entirely abro- 
gated until the entire transfer of their jurisdictional rights 
to the Crown. 

The Grand Model, which it would be an insult to Sir 
Thomas More to call Utopian, sought to organize eight 
grand courts, one of supereminent greatness, consist! n g of the 
Proprietors themselves, presided over by the oldest, who v 



History of the Supreme- Court. 



styled the Palatine, another name for king, as the word is 
derived from palatium, a royal residence. Each of the other 
seven proprietors had likewise a court of which he was the 
chief judge, with six counsellors, as assistants, chosen in an 
elaborate manner, which I have not time to describe. It is 
interesting that these tribunals are copied after those which 
prevailed in the Roman empire. Their names and func- 
tions were: 

The Chief Justice's Court, having charge of appeals in 
civil and criminal cases; the Constable's Court, having 
charge of military matters; the Admiral's Court, having 
charge of maritime affairs; the Treasurer's Court, having 
charge of matters relating to the revenue and finances; the 
High Steward's Court, having charge of commerce and 
trade, external and internal ; the Chamberlain's Court, hav- 
ing charge of matters of heraldry and ceremony, and mat- 
rimonial matters. There was to be no appeal from any of 
these courts. A quorum was to be the Proprietor and three 
counsellors/but the Palatine Court could authorize special 
cases to be tried by any three. 

There was likewise authorized a Chancellor's Court of one 
of the Proprietors and his six counsellors Its jurisdiction 
was terrific. It extended to all invasions of the law, of lib- 
erty, of conscience, and of the public peace under pretence 
of religion, and of the license of printing. It was evidently 
designed to have the terrible powers of the King and his 
Council, which, under the name of the "Star Chamber," did 
such bloody work in the effort to crush liberty in England. 

The inferior courts were to be a county court of the sheriff 
and four justices, with general civil and criminal jurisdic- 
tion, and a precinct court of a steward and four justices, with 
criminal jurisdiction in cases other than capital, and in civil 
cases other than those concerning the nobility. 

Trial by jury was authorized, but a majority carried the 
verdict. 



History of the Supreme Court. 



Some curious provisions of a general nature were made: 
For example, it was provided, as among the Romans, that 
"it shall be a base and vile thing to plead for money or 
reward." " To avoid multiplicity of laws, which by degrees 
always change the right foundations of the original govern- 
ment," " all statutes were to be ipso facto null and void at 
the end of 100 years after their passage." Further, it was 
enacted that " since multiplicity of comments as well as of 
laws have great inconvenience and serve only to obscure 
and perplex, all manner of comments and expositions on 
any part of the Fundamental Constitutions or any part of the 
common or statute laws of Carolina are absolutely prohib- 
ited." But among these and other like senseless provisions 
was found one in advance of the age. While Claverhouse 
was dispersing conventicles and John Bunyan and other 
brave spirits were languishing in prison, no man could be 
persecuted for his mode of worshipping God in Carolina. 

The Proprietors met at the Cockpit on October 21st, 1669, 
and organized themselves under the Grand Model. The 
aged George Monk, Duke of Albemarle, was by seniority the 
first Palatine, John, Lord Berkeley, Lord Lieutenant of Ire- 
land, was chosen to be first Lord Chancellor, and Anthony 
Ashley Cooper, then Lord Ashley, afterwards Earl of Shaftes- 
bury, was chosen the first Chief Justice of Carolina. 

In the following year, 1670, Earl Clarendon being in ban- 
ishment, and Sir Wm. Berkeley Governor in Virginia, six 
Proprietors met. The Duke of Albemarle had answered 
his final roll-call, and Lord Berkeley was Palatine in his 
stead. Each appointed his deputy, Berkeley choosing Samuel 
Stephens, who thereupon became the first Governor under 
the Constitution. Shaftesbury, the Chief Justice, gave his 
appointment to Mr. John Willoughby, who thus became the 
first, so far as is known, of the learned and dignified line of 
Chief Justices in our State. The other deputies, including 
Willoughby, became the Council, which, besides having other 
functions, became the upper house of Assembly of Albe- 



History of the Supreme Court. 



marie. The Proprietors, regretting that they could not put 
the Grand Model completely in operation for want of land- 
graves and caciques, instructed the Governor and Council 
to come as near to it as possible. The Governor, with the 
consent of the Council, was authorized to establish courts 
and appoint judges. 

Under these expres* instructions, to make as near approach 
to the Constitution as circumstances would admit, we find 
that the Governor and Council acted as the Court of Chan- 
cery, with almost arbitrary powers. They exercised the 
functions of an appellate court, not only as to questions of an 
equitable nature, but questions of common law and even 
fact. The Chief Justice, being a deputy of the Proprietors, 
was a member as of course, but not necessarily the Chan- 
cellor. 

The supreme common law court was called the General 
Court, in which the Chief Justice presided, with an indefi- 
nite number of assistants, appointed by the Governor and 
Council. Sometimes the members of the Council were 
assistants. What powers these assistants had does not appear. 
They probably were merely advisers of the Chief Justice 
(who received his appointment from, and held at the will of, 
the Proprietors), as the assessors in Roman courts counselled 
the proctor. This seems clear from the fact that the early 
instructions to the Governor required that they shall be 
" able and judicious persons," and it was only about forty 
years afterwards, in 1724, that they shall be " learned in the 
law." Certainly in early days they were not, except in rare 
instances, lawyers. In 1728, Governor Burrington quarreled 
with the Chief Justice, and sought to neutralize his authority 
by claiming judicial powers for the assistants. The Assem- 
bly stoutly contended, through John * Baptista Ashe and 
Cornelius Harnett, the elder, that the Chief Justice was 
supreme, and that assistants only had power to inform and 
advise, "exactly as masters in chancery informed and 
2 



10 History of the Supreme Court. 



advised the Chancellor." This view prevailed, although 
Burrington argues his point with ability. Again, I find 
when the Chief Justice was absent another was specially 
commissioned, the assistants not being allowed to hold the 
court. The assistants were allowed no salary or fees. 

What we call " counties " were, until 1738, called " pre- 
cincts," while a number of precincts constituted the larger 
jurisdictions of Albemarle and Rath counties. I do not find 
the County Courts, contemplated by the Fundamental Con- 
stitutions, ever had an existence. The Precinct Courts were 
established at once, and under the name, subsequently given, 
of Courts of Pleas and Quarter Sessions, continued until 
abolished by the Constitution of 1868. 

It is not certain that the earliest Chief Justices were law- 
yers. The title, " Captain " John Willoughby, does not sug- 
gest Coke or Littleton. He seems to have been a man of 
force, as we have an accusation against him before the Lords 
Proprietors that he was a " person who runs himself in 
many errors and praemunires by his extra judicial and arbi- 
trary proceedings in the courts." It is charged that he 
refused to grant an appeal to Thomas Eastchurch, saying 
that his courts " were the court of courts and jury of juries." 
As to the truth of the charge we must suspend judgment 
until the other side be heard from. 

The earliest record of any General Court that we have, 
in 1694, at the house of Mr. Thomas White, shows that it 
was held by the whole Council, with Mr. John Durant as 
assistant. The Chief Justice was likewise the executive, 
Hon. Thomas Harvey, Esq., Deputy Governor, the Governor 
of Carolina being at Charleston. Whether he was a lawyer 
does not appear. The assistants were Hon. Francis Tomes, 
Benjamin Lakar, Major Samuel Swann, Daniel Akehurst, 
Secretary, Esq., Lord Daputies. The cases brought before 
the Court were escheats; la'ying out roads, attachments, 
actions in debt, assumpsit, detinue, trespass, quare clausum 
fregit. Criminal cases were also tried. They sat also as a 
ourt in chancery. 



History of the Supreme Court. 11 



An instructive case, illustrating not only the court prac- 
tices, but the business habits of the people, was that of 
Hopkins v. Wm. Spragg — Attachment. 

The Provost Marshal, as the executive officer of the Court 
was called, returned attachment on six sheep, one pair of 
steelyards and one loom, one cow and yearling, one cow and 
calf, with whatever of estate of Spragg was in the hands of 
Christopher Butler; also £3 5 shillings in bonds of Lawrence 
Misell. The plaintiff declared that Spragg was indebted to 
him in 1,400 lbs of merchantable pork, agreed to be paid for; 
14 sheep sold by pJaintiff to defendant; that defendant was 
willing to surrender the 14 sheep in satisfaction, but Chris- 
topher Butler, by persuasion, prevented the same, and then, 
with intent to defraud said Hopkins, purchased all the 
defendant's estate; whereupon, Butler comes and defends 
the suit. 

A jury is impaneled, who find for the plaintiff. The 
Court orders that the Marshal make payment to the plaintiff 
of the 1,400 lbs. of pork of the ^oods attached, being appraised 
according to law, with costs of suit, and the surplus, if any, 
to return to Butler. 

Whereupon, Butler craves that further proceeding be 
stayed until the full hearing of the whole matter be had at 
the next Court of Chancery. Butler, and Mr. Stephen Man- 
waring as his surety for the appeal, give bond in the penal 
sum of 2,800 lbs. of pork. 

At the Court of Chancery, the same officers being present, 
with Col. Thomas Pollock, a Lord Deputy, and Col. Anthony 
Daws, as assistants, being added, it is recited that Christopher 
Butler, appearing and pretending title to the goods of Spragg, 
having obtained an injunction, has not filed any bill. It is 
decreed that the suit be dismissed. Evidently, Butler ap- 
pealed for delay only. I find other appeals where there was 
f no pretence of an equitable element. 

I will give a criminal case — an indictment for murder — 
which shows the rudeness of the practice in that day. It is 



12 History of the Supreme Court. 



charged that "Thos Denham, Gent., with a certain weapon, 
commonly called or known by ye name of catt of nine tayles, 
feloniously and maliciously did strike, beat, wounded and 
killed" one Hudson, who, by reason of aforesaid mortal 
strokes and wounds, did depart this life. 

Kichard Plates, Att'y Gen'L 
Jury find " guilty of manslaughter." 

The record states that Thomas Denham, having been con- 
victed of manslaughter and " saved by his Book " (a curious 
entry for pleading the benefit of the clergy), "ordered, that 
Thomas Denham be burnt in Browne of left thumb with a 
hott iron having y e letter M, and pay all costs, and upon his 
petition, the court in chancery doth reprieve said sentence 
until her Majesty's pleasure be further known." 

It seems here that the Governor and Council, sitting as a 
Court of Chancery, granted the reprieve. The power of 
reprieve was originally granted to the " Governor and Coun- 
cil." It is likely that the same body acted in an executive 
capacit}^ at one moment, and, without leaving their seats, 
resolved itself into a Court of Chancery. The functions of 
the two were therefore sometimes confounded. Long after- 
wards we find that the Governor and Council prescribed 
days for holding court, generally the week after the session 
of the General Court. * 

It will be noticed that the reprieve was " until her Maj- 
esty's pleasure be known." This seems inconsistent with 
the claim of the Lords Proprietors to absolute rule, "jura 
regalia," in Carolina. History shows that there was great 
discontent with the practical independence of the Crown 
granted by the charters of Charles II. Quo uarmntos were 
sometimes threatened for annulment of the grants, and the 
Proprietors found it necessary to make some concessions of 
their princely claims long before they sold their rights to 
the Crown. At one time the General Court refused to grant 
an appeal to the Privy Council, but afterwards it was deemed 



History of the Supreme Court. 13 



best to allow it, though so grudgingly that they refused to 
stay execution pending the appeal. 

The oath required of the judges was short and to the 
point: " You shall doe equall Right to y e poore and rich 
after your conning, witt & Power. You shall not be coun- 
cell of any quarrell hanging before you." 

We have no records of the General Court during the 
troublesome times of the so-called Cary Rebellion and the 
Tuscarora War. The record of one held in 1713, for the 
Province of North Carolina, is printed in the Colonial 
Records. This is like our modern courts. The Deputy Gov- 
ernor and his Council, with one or two assistants, are no 
longer the judges. In their place we find the Hon. Christo. 
Gale, Chief Justice, and Thos. Miller, Capt. John Pottiver 
and Anthony Hatch, Assistant Justices. Gale was a lawyer, 
though Urmstone, the missionary (not a good witness, how- 
ever, as a rule), says that he was in England only a lawyer's 
clerk. The others were plain justices of the peace. At 
what time these changes occurred does not appear. This 
constitution of the court continued for many years. 

The pleadings are more accurately drawn, though the 
spelling does not improve. For example, we have " enor- 
minous " for " enormous," " abrobrious " for " opprobrious," 
" dispositions " for " depositions." Lawyers are more numer- 
ous. The principal are Edward Moseley, Thos. Snoden, and 
Edward Bonwich, who is her Majesty's Attorney General. 
The place of meeting is Captain John Hecklefield's, in Lit- 
tle River. The Assistant Justices are sometimes styled 
" Associates." Instead of appealing to the Courts of Chan- 
cery to set aside judgments, motions are made before the 
Court itself for arrest of judgment. The points made by 
Edward Moseley in Cary v. Took would do credit to a modern 
lawyer with his unlimited access to books. 

It is to be remarked in passing that the Colonial Records 
show that the act of the General Assembly, expressly declar- 
ing that the common law is and shall be in force in this 



14 HlSTORY OF THE SUPREME COURT. 



government, except the " part of the practice in the issuing 
out and return of writs and proceedings in the Court of 
Westminster," &c, which Hawks and others say was first 
passed in 1715, was certainly passed as early as 1711. 

Christopher Gale is the most imposing figure in the early 
judiciary. His portrait, with his dignified countenance and 
flowing wig, shows judicial serenity equal to his contempo- 
raries in England. The missionary, Urmstone, whose grum- 
bling spirit and vituperative pen destroy his credibility, 
cannot help admitting that he had gained great esteem, and 
was regarded as an oracle. Everard and Burrington praise 
him atone time, and when he opposes their schemes violently 
denounce him, as they did all other officers not agreeing 
with them. But the vestrymen of his church indorse his 
piety, the members of the lower house of the Assembly his 
learning and integrity, and the Lords Proprietors give him 
their support. My opinion inclines to Gale. 

AVhoever has held the great office of Chief Justice deserves 
at least that his name shall be recorded. I therefore state that 
Tobias Knight, the same who was accused of complicity 
with the pirate Teach, or Thache (pronounced Tack), known 
as Blackbeard, who was, however, acquitted, was in place of 
Gale, who vacated his office by going to England. Then 
came Frederick Jones, who, I am grieved to say, unjustly 
detained money, paid to him in lieu of bail, which his exec- 
utors were forced to disgorge. Then came Gale again, during 
whose second term the court was for the first time held in a 
court-house, in Edenton, formerly Queen Ann's Creek. In 
1724 the. terrible Burrington assumed the power of ejecting 
him and appointing Thomas Pollock, but the indignant Pro- 
prietors quickly reversed his action, ejecting Burrington 
and installing Sir Richard Everard as his successor. At the 
Court in 1726 ten assistants sustained the Chief Justice, 
while three indictments were found against the late Gover- 
nor for trespass, assault, misdemeanor and breach of the 
peace, which the accused contemptuously ignored until after 



History of the Supreme Court. 15 



the second term the Court, in despair of enforcing its author- 
ity, ordered nolle prosequis to be entered. It was high time 
for the Lords Proprietors to surrender a trust which they 
had so shamefully mismanaged. 

In 1728 the Proprietors transferred to the Crown the 
jurisdiction over all the territory covered by the charters of 
1663 and 1665, and seven-eighths of the title to the land, 
Earl Granville retaining his interest in the soil, which was 
in 1744 conveyed to him in severalty. The jurisdiction was 
not formally assumed until 1731, when Burrington, the first 
royal Governor, replaced Everard. There was no change, 
therefore, in the court system until the latter date, Gale con- 
tinuing to be Chief Justice, and having constantly stormy 
disputes with the Governor. He was superseded by William 
Smith, who is described as having been educated at one of 
the English universities, and having been a barrister at law 
for two years. The royal instructions to ihe Governor show 
a desire to have a better government. The Governor was 
forbidden to displace a Judge, without good cause reported 
to the King or the Commissioners for Trade and Plantations. 
Justice was ordered to be dispensed without delay or par- 
tiality, and the privilege of the writ of habeas corpus w 7 as 
enjoined Appeals from the Court to the Governor and 
Council were allowed in cases of over £100 value, and thence 
to the Privy Council in cases over £300. 

Burrington, in an official report, gives a very intelligent 
account of the court laws of his day. The Chief Justice was 
paid a salary and fees for forty-one several acts, the scale of 
which may be estimated from issuing a writ being 3 shillings,, 
filing a declaration or plea 2 shillings and 6d., &c. The 
Clerk's fees were about the same as those of his chief. The 
fees were payable in Proclamation money, or in certain 
commodities at prescribed rates, e. g., tobacco at 11 shillings 
per 100 lbs., corn at 2 shillings per bushel, wheat at 4 shil- 
lings per bushel. The Clerk, Win. Badham, reports that in 
1772 the salary of the Chief Justice was £60 per annum, and 



16 History of the Supreme Court. 



fees about £100. The latter rose to £500. Attorney Gen- 
eral Little in 1731 estimates his own fees at £100, and the 
Chief Justice's income at £500 or £600, of which £60 was 
salary. The depreciation in Proclamation money varied 
very much at this time — according to Burrington the pound 
sterling being eight to one, but according to the Assembly 
-only five to one. 

Governor Burrington's friendship with Chief Justice Smith 
was of short continuance. We soon find the latter proceed- 
ing to England bearing complaints of the Governor's tyran- 
nical and overbearing conduct, one witness swearing that he 
had in the presence of the Court ordered the marshal to 
arrest and imprison him. The Governor endeavored to 
break the force of his attack by writing to the Board of 
Trade that Smith was "the jest and scorn of the men who 
perverted him," " a silly, rash boy, a busy fool and an egre- 
gious sot," " ungrateful, perfidious scoundrel, and as much 
wanting in truth as understanding." 

These are hard words to be said of one presiding in the 
highest court of the land, but the Chief Justice repaid the 
Governor with such compounded interest that Gabriel John- 
ston was soon seated in the executive chair, and Smith 
resumed his seat on the bench. 

During Smith's absence in England, Burrington appointed 
John Palin as his successor, and on his resignation from ill 
health, Wm. Little, Gale's son-in-law, who died in two years 
and was succeeded by Daniel Hanmer, who in turn was soon 
ousted by the triumphant Smith. Those were sad times. 
In addition to the outrageous violence of the Governor, the 
lower house of the Assembly unanimously voted that Chief 
Justice Little was guilty of oppression and extortion, while 
Chief Justice Hanmer was imprisoned for perjury, which his 
friends charged was procured by the vindictive malice of 
Chief Justice Smith. Sixteen members of the Assembly 
charged Smith with grievous exactions and extortions and 
offered to prove the charges if time should be given for pro- 



History of the Supreme Court. 17 



curement of the witnesses. And still people prate of the 
glorious old time! Even the old song, which tellsof y the 
miller's stealing corn and being drowned in his " dam, - and 
the weaver's expiating the theft of yarn b} 7 being hung in 
his web, and of the little tailor who went down below grip- 
ping tightly the purloined broadcloth under his arm, neither, 
however, meeting justice at the hands of the law — even that 
old song, bearing most cogent testimony of wide-spread 
corruption, has the effrontery to begin: 

"In the good old Colony times, 
When we were under the King!" 

We now approach an important epoch in the history of 
our Colonial law. For many 3-ears the judges had been 
endeavoring to mould our judicial system after the English 
pattern — a court in bank, where all the pleadings were made 
up, sending out its judges periodically for trials of questions 
of fact in the neighborhood where the parties and witnesses 
reside. The first circuit ever attempted was Edenton and 
Newton, in Hyde County. The increase of population on 
the Cape Fear, the Neuse and the Tar, made it proper to 
take steps to accommodate those localities. Governor John- 
ston and his able Council were leading spirits, determined, 
if possible, to introduce the English system more fully, with 
JSTewbern as the new Westminster and to adopt that town 
as the capital of the Province. 

A formidable obstacle was in the way of this improve- 
ment. The Lords Proprietors had granted each of the six 
precincts of old Albemarle County, Currituck, Pasquotank, 
Perquimans, Bertie, and Tyrrell, five members of the Assem- 
bly, while the others had only two. Such inequality may 
seem atrocious to us, but there were scores of worse inequal- 
ities among the boroughs sending members to the British 
House of Commons ; and we are familiar with diminutive 
Delaware having the same political power in the Federal 



18 History of the Supreme Court. 



Senate as her big sister New York, with population thirty-five 
times greater. Certainly the inhabitants of those counties 
clung tenaciously, without sense of shame, to their privilege; 
and their thirty members, being a majority of the House, voted 
solidly against transferring the seat of government from 
Edenton. 

Governor Johnston determined to carry his point by sur- 
prise. He prorogued the Assembly, appointing the new 
place, Wilmington, as far as possible irorn the Albemarle, 
and the time, the latter part of November, when the swamps 
and low grounds were usually deep in water, and the Albe- 
marle members, nearly all planters, were engaged in driv- 
ing their hogs to market or curing their slaughtered carcasses 
for future use. He reckoned correctly that they would be 
slow in making the long and toilsome journey, and incur- 
ring danger of financial ruin by leaving their farms at a 
most critical period. By his advice, the southern members, 
taking advantage of their absence at the opening of the term, 
resolved that, by analogy to the British House of Commons, 
in which forty members constitute a quorum for transacting 
business, fourteen and the Speaker should be a quorum, and 
proceeded to reduce the representation of those counties to 
two each, fixed the seat of government at Newbern and 
passed the court bill of 1746. They thus added one more to 
the instances of good measures, like the union of England 
and Scotland, and the habeas corpus act, passed by un- 
worthy means. 

By virtue of this act Newbern took the place of West- 
minster. All writs, plaints, and process were to be com- 
menced in the Supreme or General Court then, and all the 
pleadings and proceedings thereon were to be carried on 
until the case was at issue, and then the court issued out 
writs of nisi prius and subpoenas for witnesses to attend at 
the proper places. 

These nid prius courts were to be held by the Chief Jus- 
tice twice a year at Edenton, in the Northern circuit, at Wil- 



History of the Supreme Court. 19 



mington in the Southern circuit, and in the court-house in 
Edgecombe in the Western circuit. 

The supreme and principal Court of Pleas for the Province 
was to be held twice a year in Newbern, and was to be 
called by the old name, the General Court. The Court con- 
sisted of the Chief Justice, appointed by the Crown, and 
three Associates to be appointed by the Governor, the Asso- 
ciates to have the powers of Associates in England, and to 
hold the Court in cases of the sickness or disability of the 
Chief Justice, or when he was a party. 

The criminal cases were to be tried in courts of Oyer and 
Terminer and General Jail Delivery, to be held by the 
Chief Justice, or some person specially commissioned. 

The Courts of Chancery were to be held in Newbern on 
the second Tuesdays after the General Courts. 

The County Courts were to have cognizance of all cases 
above 40 shillings, and not exceeding £20 Proclamation 
money, of all petty larcenies and misdemeanors, with right 
of appeal to the General Court. 

This act was a great improvement on the old system. It 
contains many provisions of the court acts of North Carolina 
of our day. I conjecture it was drawn by Moseley, then Chief 
Justice, or by him and Samuel Swann, both of whom were 
able and experienced lawyers. They, with Enoch Hall and 
Thomas Barker, were appointed the same year to revise and 
publish the Acts of Assembly in force. Hall and Barker 
seem not to have acted, and Moseley died in 1749, so the 
work is called Swann's Revisal, or "Yellow Jacket." 

The admirers of Archibald MacLain claim for him the 
authorship of the much-lauded court law of 1777, which 
claim is, I think, successfully disputed by the admirers of 
James Iredell the elder in his behalf. The codifiers of the 
Revised Statutes of 1836 give the credit to the unknown 
author of the court law of 1767, but an inspection of the Acts 
of 1746 shows that its authors should have equal praise. 



20 History of the Supreme Court. 



The acts met with vehement opposition at home and in 
England.; The Board of Trade submitted the question as 
to their loyalty to the eminent law officers, both afterwards 
conspicuously adorning the Chief Justiceship of the King's 
Bench of England, Sir Dudley Ryder, Attorney General, 
and Win. Mansfield, afterwards Lord Mansfield, Solicitor 
General. Their opinion was that the acts were passed " by 
management, precipitation and surprise, when very few 
members were present, and are of such a nature and ten- 
dency and such an effect and operation that the Governor, 
by his instructions, ought not to have assented to thein,tho' 
they had passed deliberately in a full Assembly." 

Whereupon, the agent for Xorth Carolina craved leave to 
appear by counsel, Mr. Hume Campbell and Solicitor Sharpe. 
Their argument was ably replied to by Mr. Joddrell, coun- 
sel for the Albemarle counties. 

This argument was had in 1751, five years after the pass- 
age of the act. Three years after this the Board of Trade 
made its decision against the acts, on the ground that they 
encroached on the King's prerogative. In consequence of 
this unaccountable and criminal neglect during all the years 
from 1746 to 1754, the six counties regarded not only ihese, 
but all other acts of Assembly, as illegal, and refused to 
recognize them in any way, because passed by an unlawful 
Assembly. Juries refused to attend the courts in Edenton, 
and there was practically no recognized government in the 
Albemarle country. Bishop Spangenberg, the Moravian, 
reports that i: perfect anarchy prevailed. As a result, crimes 
are of frequent occurrence." This is not an unusual exam- 
ple of the misgovernment of Xorth Carolina during the 
Colonial period. 

The Assemblies under Governor Dobbs showed determined 
purpose to secure administration of the law, intelligent and 
honest. To secure independence they enacted that the Asso- 
ciate Justices should hold office during good behavior, 
which had been the rule in England since the Act of Set- 



History of the Supreme Court. 21 



tlement, in 1701. To secure legal ability and interest in the 
Province, they enacted that no one should be an Associate 
Justice unless he should have been an outer barrister of 
five year's standing in England, or an attorney of seven years 7 
practice in this or an adjoining Colony, and also have been 
a resident here for one year. 

This excellent law was vehemently objected to by the 
Crown officers of the Board of Trade, and was repeatedly 
disapproved by the Crown. The Assembly stood firm, so 
that occasionally there was an interval of anarchy between 
the notice of the disapproval and the passage of the new 
law. Riotous assemblies were had, jails broken into, male- 
factors set at large, and violence and robbery were frequent 
and unpunished. Attorney General Robert Jones piteously 
complains that the rioters of Granville had notified him 
that they intended to petition the Court to silence him, and 
if tfefey refused, to pull his nose. 

The flimsy reasons given for the disapproval of these acts 
bring out clearly the strength of the position taken by the 
Assembly. They were: 

1. That the qualifications prescribed for the Associates 
were an unconstitutional restraint on the power of the Gov- 
ernor, who held his power of appointment under the Great 
Seal. 

2. That they -practically prevented any one from England 
being appointed an Associate Judge. 

3. That it was manifestly improper that the Associates 
should hold during good behavior, while the Chief Justice 
held at the pleasure of the Crown. 

4. That the acts create the offices of Associate Justices, 
leaving the Governor only the form and name of commis- 
sioning them. 

5. That it delegates to them, in the absence of the Chief 
Justice, the whole right of jurisdiction, which right can only 
be delegated by the Crown. 



22 History of the Supreme Court. 



6. That by the extending the circuit over 1,900 miles a 
year, a disability of attendance is created. 

7. That the Chief Justice in distant arid desert places will 
be deprived of recourse to books to enable him to make a 
right decision. 

In 1700, Governor Dobbs was moved, by the urgency of 
the Assembly and prevalence of anarchy, with the approval 
of Chief Justice Berry, and the Attorney General Childs, 
who had given a different opinion when in England, to 
sign a court law substantially the same as that disapproved 
by the Crown. For this he was severely censured by the 
King and Council, and the laws were disallowed ; wherefore, 
in 1762, the Assembly receded from the obnoxious provis- 
ions. '.' A Supreme Court of Justice " was established in the 
district of Edenton, Newbern, Wilmington and Halifax, 
to be composed of the Chief Justice and one Associate, and 
in the Salisbury district of the Chief Justice and an assistant 
Judge. 

In 1767, a new and more elaborate court system was 
adopted for five years. The Province was divided into five 
judicial districts, Hillsboro being added to those hereto- 
fore mentioned. In each was a court held by the Chief Jus- 
tice and two Associates, the latter appointed by the Gover- 
nor and allowed £500 a year, for payment of which a special 
tax on each wheel of a pleasure carriage, and on law suits, 
was laid. Martin Howard was Chief Justice, and Richard 
Henderson and Maurice Moore were appointed Associate 
Justices. 

This system was an essential departure from the English 
system. Instead of the judges trying questions of facts only 
in the districts, leaving the questions 1 of law to be heard 
before all the judges sitting in bank at Newbern, all the 
members of the Court went to the court-house of each dis- 
trict and there heard both questions of fact and questions 
of law. The Nisi Prius Court and the Appellate Court were 
held in the same town by the same judges, and during the 



History ok the Supreme Court. 23 



same term. A great defect was, that one Judge, in the 
absence of the others, had all the powers of the Court. 

The salary of the Chief Justice was £26, and of the Attor- 
ney General £1(3, the Associate Justices £41 13s. 4d., Proc- 
lamation money, for each court. 

The act was not renewed. After the expiration of the five 
years' limit, the Governor and Council insisted on exempt- 
ing from the attachment laws the estate of those who had 
never resided in the Province, and to confine them to cases 
of those debtors who had absconded from the Province with 
the intent to avoid payment of their debts. The Lower 
House unanimously resolved that the right to attach the 
estates of foreigners had long been exercised by the inhabi- 
tants of the Province; that it had been found greatly bene- 
ficial to its trade and commerce, and the security of the 
property of inhabitants, and that they could not, by any 
public act of theirs, relinquish this right, abandoning the 
interest of their constituents, and the peace and happiness 
of the Province. The Governor urged them to provide 
compensation, at least for those appointed by him especially 
to hold courts of Oyer and Terminer and General Jail 
Deliver} 7 , but they firmly declined. They claimed that such 
commissions could not be valid without the aid of the Leg- 
islature; that calamitous as the circumstances of a people 
might be, from the interruption both of criminal and civil 
jurisprudence, the House judged the misery of such a situa- 
tion vanished in comparison with a mode of redress exer- 
cised by courts unconstitutionally formed. The various 
arguments of the Assembly on this question show ability 
and a fixed determination to secure for themselves the 
untrammeled right to pass laws suitable to the circum- 
stances of the Province. 

In consequence of this disagreement, our Province was 
without higher courts from 6th March, 1773, to December 
24, 1777, which period is excepted out of the statute of limita- 
tions by the court law of 1777. Governor Martin attempted to 



24 HlSTOKY OF THE SUPREME COURT. 



inaugurate criminal courts by special commission, under 
the royal prerogative, Samuel Cornell being, pro hoc vice, 
appointed Chief Justice, but such strong exceptions were 
made to the commissions that the scheme was not pressed. 
There is abundant evidence of. the crime and turbulence 
resulting from the suspension of the courts. It was not long, 
however, for in August, 1775, the State Congress at Hillsboro 
adopted a provisional government in preparation for the war 
of independence, and the functions of the judiciary wereexer- 
cised by the stern hand of the Committees of Safet} 7 . 

It only remains, before leaving the Colonial history of the 
Supreme Court, to give a list of the Chief Justices after Wm. 
Smith, who left for England in 1740. John Montgomery 
received the temporary appointment, which, on Smith's 
death, three years later, was made permanent. He was suc- 
ceeded in 1744 by Edward Moseley, a man of great ability, 
who for forty-four years preceding his death, in 1749, with 
rare ability and weight of character, was ever foremost in 
public and in private life, in working for the material inter- 
est of the Colony, in battling for the rights of the people, in 
courageously withstanding the tyranny of the executive. 
After Moseley was Enoch Hall, whose good character receives 
the praise of Governor Dobbs, while his knowledge of the 
law receives his depreciation. On his visiting England in 
1750, Eleazer Allen and James Hazell held the office suc- 
cessively. I know nothing of Allen. McCullock, the elder, 
estimates Hazell as a creature of Johnston, not bred to the law 
and without the least knowledge therein. Peter Henly was 
next in office, a man of uprightness, according to the Lower 
Ht. use of Assembly. On his death in 1758, James Hazell 
was again the locum tenens, until the arrival of Charles 
Berry. He seems to have been a fair and upright Judge 
until he came to a tragic end in 1766, by suicide in a fit of 
temporary insanity, it is said, brought on by brooding over 
the displeasure of Tryon because the slayer of an English 
officer in a duel was not convicted in his court. 



History of the Supreme Court. 25 



Martin Howard, the next Chief Justice, was a firm sup- 
porter of the royal prerogative. For his advocacy of the 
Stamp Act, while a Judge in Rhode Island, his home was 
burnt and he was forced to flee for his life. Unusual obloquy 
has been heaped upon his name; but as he was allowed to 
reside on his plantation in Craven County, where he claimed 
to have made two blades of grass grow where one grew 
before, unmolested, until the middle of September, 1777, and 
was on friendly terms with Judge Iredell, I surmise that 
much of the odium against him must be attributed to party 
feeling. His legal reputation was high. 

Judges Moore and Henderson espoused the cause of the 
Colonies, and the former was active as a legislator in Revo- 
lutionary times. Moore seems to have been an able lawyer. 
Henderson turned his attention to land speculation, and 
certainly had ambitious views, as history shows. A son of 
the former, Alfred Moore, became a Judge of the Supreme 
Court of the United States, and a son of the latter, Chief 
Justice of the Supreme Court of our own State. 

The Constitution of the free State of North Carolina was 
adopted on the 18th of December, 1776. The framers had 
no conception of any system in which the judges of the 
supreme or appellate court should not themselves sit in the 
trial of causes. There is no provision in it regarding a 
Superior Court Judge. It is the legislative, executive and 
supreme judicial power that are to be kept separate. The 
General Assembly is to elect Judges of the Supreme Court 
of law and equity and Judges of the Admiralty. It is the 
Judges of the Supreme Court who are to have adequate 
salaries. It is certain that the Constitution contemplated 
that the Supreme and Superior Court Judges should be the 
same persons, as in Colonial days and as in England. 

Under the Colonial government, the Chief Justice was the 
highest judicial power; yet he was a member of the Council 
and therefore an influential part of the executive depart- 
3 



26 History of the Supreme Court. 



ment. As the Council was the upper house of the General 
Assembly, he was likewise an influential part of the Legis- 
lature. The Governor not only could disapprove acts and 
dissolve and prorogue the Assembly, but had large weight 
in the appointment and control of the Council, and thus 
had power in the Legislature. Moreover, being a member of, 
and presiding over, the Court of Chancery, he was an impor- 
tant factor in the judicial department. In fact, com- 
plaint was made against Governor Johnston that he acted 
as Chancellor when the court was not in session. Hence, 
we find the prohibition of the intermingling of the three 
departments of our government inserted in the Declaration 
of Rights. But the framers of the Constitution had had so 
much experience of the arbitrary conduct of the Governor and 
Judges that they made the executive and judicial branches 
almost entirely dependent on the General Assembly, the 
annually-elected agents of the people. I will not stop to 
show this as to the Governor. The statement is abundantly 
evident as to the judges. They held office during good 
behavior, but they could be removed by repeal of the law 
authorizing the court. They were to have adequate salaries, 
but the Assembly had the sole decision as to what was ade- 
quate. The Assembly, without the intervention of a grand 
jury, could prosecute them by impeachment for alleged mal- 
administration or corruption. 

The Constitution of 1835 remedied at least two of these 
defects. By the amendments then adopted, the salaries of 
the judges could not be diminished during their continuance 
in office, and the Senate only could try impeachments, two- 
thirds being required for conviction. The judges were still 
removable by repeal of the law under which their offices 
were held. It was not until 1868 that the Supreme Court 
was made a part of the Constitution, so as to secure entire 
independence. It is a strong proof of the firmness and integrity 
of our judges since 1777, as well as the conservatism of our 
people, that those officers never hesitated to do their duty, 



History of the Supreme Court. 27 



even when in opposition to the will of the Assembly, and 
the people sustained them. They have repeatedly declared 
null laws framed by the body which could have docked 
their salaries and even abolished their offices. They have 
not hesitated to incur temporary unpopularity in defence of 
principles of lasting value. 

On November 15, 1777, the new court law was adopted. 
It is so nearly a copy of the act of 1767 as to suggest the 
probability of having been drawn by the same lawyer. The 
term " Superior Court " was used when it was manifestly 
proper to use the constitutional term " Supreme Court," 
which would not have been a misnomer, as it had supreme 
jurisdiction. , In another section the draftsman forgot to 
omit the words " or commander-in-chief " after the word 
Governor, as should have been done. In the oath are phrases 
copied from the old oath, which are out of place in a gov- 
ernment where the judges are in no danger from the arbi- 
trary action of the executive. 

The few changes were undoubtedly for the better. Two 
judges were required to declare questions of law, or" demur- 
rers, cases agreed, special verdicts, bills of exception to evi- 
dence, and motions in arrest of judgment. The licensing of 
new attorneys was taken from the Governor and given to at 
least two judges. The salary was increased to £100 for each 
term attended, or £50 in case of non-attendance from neces- 
sity, and no fees were allowed. 

It shows the continued domination of English ideas that 
the establishment of courts of equity was delayed for five 
years. As the departments of government were obliged, 
under the Constitution, to be kept separate, the General 
Assembly could not, even if it desired, have conferred equita- 
ble jurisdiction on the Governor and Council, as in Colonial 
days, nor was the creation of new offices in accordance with 
their views. The expedient of making the same officer a 
judge at one hour> of law, and at another, of equity, was not 
obvious to the legislative mind until 1782. 



28 History of the Supreme Court. 



The act of 1777 followed that of 1776 in dividing the State 
into six districts, the Courts for which were to be held at 
Wilmington, Newbern, Edenton, Hillsboro, Halifax and 
Salisbury. In 1782 the district of Morgan was added, and 
in 1787 that of Fayetteville, making eight in all. The 
Attorney General, as in Colonial times, attended all the 
Courts in behalf of the State. The people of the counties of 
New Hanover, Onslow, Bladen, Duplin and Brunswick 
attended Court in Wilmington; of the counties of Craven, 
Carteret, Beaufort, Johnston, Hyde, Dobbs and Pitt, in New- 
bern ; of the counties of Chowan, Perquimans, Pasquotank, 
Currituck, Bertie, Tyrrell, Hertford and Camden, in Eden- 
ton; of the counties of Halifax, Northampton, Edgecombe, 
Bute, Martin and Nash, in Halifax ; of Orange, Granville, 
Wake, Chatham and Caswell, iu Hillsboro ; of the counties 
of Rowan, Anson, Mecklenburg, Guilford, Surry, and Mont- 
gomery, in Salisbury; of the counties of Burke, Wilkes, 
Rutherford, Washington, Sullivan and Lincoln (Washing- 
ton and Sullivan being in what is now Tennessee), in Mor- 
gan, now called Morganton; the people of the counties of 
Richmond, Cumberland, Sampson, Union and Robeson, in 
Fayetteville. 

A full Court consisted of all three Judges and Attorney 
General. One Judge could hold the Court, but it required, 
as before stated, two Judges to sit as an appellate or Supreme 
Court. For trial of criminals beyond " the extensive moun- 
tains that lie desolate between the inhabited parts of Wash- 
ington (in Tennessee) and the inhabited parts of Burke," it 
was provided by act of 1782 that one of the Judges, and 
" some other gentleman commissioned for the purpose," 
should liold Court at the county seat of Washington (Jones- 
boro), for that county and Sullivan, the Judges and Attor- 
ney General to have two-thirds of the allowance given for 
holding the other Courts. 

The first Judges elected were Samuel Ashe, of New Han- 
over; Samuel Spencer, of Anson, and James Iredell, of 



History of the Supreme Court. 29 



Chowan. After riding one circuit Iredell resigned his seat, 
and John Williams, of Granville, took his place in 1777. 
Iredell was a very able lawyer, of a judicial temper, after- 
ward fully demonstrated on the Supreme Court Bench of 
the United States, to which he was appointed by Washington. 
Ashe held his office until 1795, when he was elected Gov- 
ernor; Spencer until his death in 1794; Williams until his 
death in 1799. For thirteen years, at a most critical period 
of our history, during the throes of the Revolutionary War, 
during the chaotic days of the nerveless confederacy suc- 
ceeding, when the exhausted people, staggering under broken 
fortunes and a worthless currency, were bringing into order 
the State whose liberties they had won, during the stormy 
discussions preceding the adoption of the Constitution, which 
many thought would bring back the galling tyranny of 
Tryon and Martin — during all these times of despondency 
and poverty, of dissension and furious party spirit, these 
three were the entire judiciary — Judges at nisi prius and 
Judges in bank, Judges of law and Judges of equity, Judges 
of the Superior and Judges of the Supreme Court. 

The calm judicial demeanor, the superiority to the pas- 
sions which tear the breast and influence the actions of 
clients and their lawyers, was not in those days, nor long 
afterwards, expected of the Bench. Fierce sarcasms, like 
those of Ellenborough and Chase, and foul curses, like 
those of Thurlow, could be paralleled at many courts 
in England and America. It was not until 1796, that 
a Judge in North Carolina was forbidden to express to 
the jury his opinion of the facts, and this practice 
inevitably provokes the wrath of lawyers. It is not wonder- 
ful that our judges had the faults of their day. Moreover, 
neither one of the judges had properly much training in 
the law before his election to the Bench. Ashe was a lawyer, 
but the character of the practice and the turbulence of the 
timas did not allow much devotion to his profession. Spencer 
had been Clerk of Anson Court and certainly had been a 



30 HlSTORY OF THE SUPREME COURT. 



lawyer only a limited time, if at all. Williams had been a 
carpenter, and though possessed of good judgment and 
highest character, was unlettered. The troublous times of 
the Revolution afforded little opportunity for the Judges to 
perfect themselves for their judicial duties. Having wit- 
nessed with their own eyes the despotic conduct of Gover- 
nors and other royalist officers, their feelings were warmly 
enlisted against the establishment of a strong general gov- 
ernment. Some of the lawyers who practiced before them 
were well read in literary as well as legal lore, ardent Fed- 
eralists, and at least two of the most prominent, Maclaine 
and Hay, were high tempered, and when irritated, had 
tongues sharp as a scorpion's sting. 

The estimate placed by these gentlemen on the Judges, is 
extremely unfavorable. Maclaine and Hay spoke of them 
with bitter contempt. Davisf refused the offer of the Dis- 
trict Judgeship of the United States, because of the paltry 
salary, though he was " anxious to escape from the d — d 
Judges." Hooper narrates the following, which I quote as 
showing our improvement in judicial dignity : 

" Court went on in the usual dilatory mode. Great threats 
of dispatch accomplished in the usual way. Much conver- 
sation from Germanicus (Spencer), on the bench ; his vanity 
has become insufferable, and is accompanied with overbear- 
ing insolence. Maclaine and he had a terrible ' fracas/ 
Germanicus with those strong intuitive powers with which 
he is inspired, took up Maclaine's defence in an ejectment 
and run away with it before it was opened. Maclaine expos- 
tulated, scolded, stormed, called names, abandoned the case. 
I prevailed, Spencer made condescensions, hostilities ceased 
and peace was restored." 

Hay made before the Assembly of 1785, accusations against 
the Judges for the following offences. I copy verbatim from 
a letter of Hooper: 

"1. High fines and shameful appropriations of them. 



History of the Supreme Court. 31 



" 2. Admitting new and illegal prosecution (depreciations, 

Ac). 

"3. Banishment of Brice and McNeill. 

" 4. Dispensing with laws (the Newbern case). 

"5. Negligence of their duty and delay of business. 

" 6. Ill behavior to Mr. Hay at Wilmington." 

As to these charges, the Attorney General (Moore) said that 
some of them were quite new to him. Judge Ashe refused 
to notice these at all, and said that " he has clear hands and 
a pure heart." 

Hooper says Hay " boils with as much fury against the 
judges as Saul against the Christians." He adds that "the 
ridiculous pursuit of Hay's ended as he expected. It was 
conceived in spleen and conducted with such headstrong 
passion that after the charges were made evidence was want- 
ing to upset them." On the whole, we must conclude that 
the judges were not as learned or as dignified as our standards 
require, but they were by no means as deficient as the criti- 
cal Federalist lawyers painted them. There were bad man- 
ners on both sides. That Spencer had talent and influence 
is proved by the continued hold he retained on the affec- 
tions of the people of the State, especially of his intelligent 
constituents of Anson. It is proved by the evident respect 
shown to him and his opinions by such men as Iredell and 
Johnston and Davie in the Constitutional Convention of 
1788, as well as by his strong arguments against certain 
clauses of the Constitution. I regret to say that tradition 
sustains the charge against his private character as to his 
anticipating, in his mode of living, the practices of Brigham 
Young, but I find no tangible charge of corruption in office. 
I am fortunate in being able to give a contemporary newspa- 
per account of his death, the most peculiar in all the history 
of the taking off of great men : 

In extreme old age he was placed in a chair in his yard 
under a shady tree. A red cap protected his bald pate from 
the flies. The humming of bees and the balmy sunshine 



32 History of the Supreme Court.. 



brought a gentle slumber upon him and caused him to nod. 
A large turkey gobbler mistook his nod for a challenge to 
fight, and smote with heavy spur the old man's temple. 
Suddenly awakened by the blow and resounding flaps of 
hostile wings, the venerable judge lost his balance, and fell 
heavily to the ground and was dead. The inhabitants of the 
valley of the Pee Dee will tell you that the gobbler was his 
murderer. My newspaper states that he was killed by the 
shock of the fall. Let each of you make his own deduc- 
tion, according to his views of potentia proximo, and pot^nUa 
remotissima. The only judge cognizant of the facts died 
before rendering a decision. 

Samuel Ashe was undoubtedly a man of force, strong in 
intellect and will, though his taste did not lie in hard study 
of the law. He had the confidence of his contemporaries 
during his nineteen years of judicial service, and after his 
elevation to the executive chair. The wrangling with the 
bar and between the judges, so often imputed to Spencer 
and Williams, were not imputed to him. though the charge 
that his hatred of Tories swerved him from perfect impar- 
tiality, in cases in which they were parties, may probably be 
true. Williams was in all likelihood the most unlearned of 
the three, but he has left behind him, especially among his 
neighbors in Granville in and around the village named in 
his honor, an unspotted reputation for integrity and chari- 
table conduct. 

These, our earliest judges, are entitled to the eminent dis- 
tinction of contesting with Rhode Island the claim of being 
the first in the United States to decide that the courts have the 
power and duty to declare an act of the Legislature, which 
in their opinion is unconstitutional, to be null and void. 
The doctrine is so familiar to us. so universally acquiesced 
in. that it is difficult for us to realize that when it was first 
mooted, the judges who had the courage to declare it were 
fiercely denounced as usurpers of power. Speight, afterwards 
Governor, voiced a common notion when he declared that 



History of the Supreme Court. 33 



u the State was subject to three individuals, who united in 
their own persons the legislative and judicial power, which 
no monarch in England enjoys, which would be more des- 
potic than the Roman Triumvirate and equally insuffer- 
able." In Rhode" Island the Legislature refused to re el^ct 
judges who decided an act contrary to their charter to be 
void. In Ohio, in 1807, judges who had made a similar 
decision were impeached, and a majority, but not two-thirds, 
voted to convict them. As I have mentioned, the action of 
the court was the foundation of one of the charges brought by 
Hay. He accused them with dispensing with a law — the 
" Newbern case." This was the case of Bayard v. Singleton, 
in ejectment, which our judges had the nerve, as early as 
May Term, 1786, to refuse to dismiss, as ordered by act of 
Assembly, on affidavit of the defendant that he bought the 
land in suit under confiscation sale. The judges were sus- 
tained eventually by public opinion. Iredell wrote a strong 
pamplet vindicating the power of the judiciary. New York 
follows with a similar decision in 1791 ; South Carolina in 
1792 ; Maryland in 1802 ; the Supreme Court of the United 
States, in Marbury v. Madison, in 1801. 

The Constitution contemplates that, as in England, the 
office of Attorney General should be of great importance. 
In his mode of election, and in the mandate as to adequate 
salaries, he is classed with the Governor and Supreme Judges. 
It is very doubtful whether the act of 1790, which provided 
for a Solicitor General for one-half of the counties, and that 
of 1806, which reduced the Attorney General to little 
better than a Solicitor for the metropolitan circuit, were 
not in this respect unconstitutional. They were certainly 
extra-constitutional. The early Attorneys General were 
equal if not superior to the Judges as lawyers. Waightstill 
Avery, who first held the office, was an accomplished and 
able man, the worthy ancestor of one of our present judges. 
On his resignation from ill-health in 1779, James Iredell 
succeeded and served until 1782. His successor, Alfred 
Moore, resigned in 1790 in disgust at being required to sur- 



34 History of the Supreme Court. 



render to Edward Jones, the Solicitor General, half of the 
honors and emoluments of his office. The office lost none 
of its dignity by next devolving on the greatest criminal 
lawyer of that day, John Haywood. 

We now resume the legislative history of the Supreme 
Court : 

In 1790 the eight judicial districts were separated into 
ridings, the districts of Halifax, Edenton, Newbern and 
Wilmington constituting the Eastern, and those of Morgan- 
ton, Salisbury, Fayetteville and Hillsborough constituting 
the Western riding. An additional Judge, Spruce McKay r 
whose advent was hailed by the lawyers deservedly with joy, 
was elected. Two judges in rotation, with the Attorney or 
Solicitor General, were assigned to hold the courts in each 
riding. This law was, as to the appellate functions of the 
court, worse than the old. The uniformity secured by hav- 
ing the same Judges for all the State was lost, and the mis- 
erable spectacle of diverse decisions by different supreme 
tribunals of the same question was not only possible but 
frequent. Delays from difference of opinions were unavoid- 
able. For example, take the case of Winstead v. Winstead, 
in 1 Haywood, where the question was whether levy on the 
land of husband and sale after death divests dower. The 
court was composed of Williams and Haywood. They 
agreed that the levy did not divest dower but concluded to 
write their opinions afterwards. Williams failed to send his 
opinion, so the case was continued, and in October, 1796, 
came before McKay and Stone. McKay stated that he was 
not ready to decide the question. Afterwards, at another 
term, when Williams returned, the case came up again, and 
he was inclined to change his opinion ; so the case was con- 
tinued again. The final entry is that it went off the docket 
without decision, whether because the widow Winstead died 
of old age does not appear. It was impossible for the ablest and 
best balanced judges to give satisfaction under these adverse 
circumstances, so there was wide-spread anxiety to procure a 
change. For eight years of this period, too, these judges. 



History of the Supreme Court. 35 



as I have said, were authorized to express their opinion of 
the facts to the jury, and as there was no appeal from their 
decisions, their power was certainly inconsistent with free 
institutions. It was greater even than in Colonial times, 
because then the Court of Chancery, and appeal to the King 
in Council, were checks to unfair decisions. 

The student of history sees repeated instances of God's 
evolving good out of what appeared at the time an unmixed 
evil. The corrupt conduct of one of our most trusted and 
beloved public servants proved a partial remedy for our 
ruinously inefficient judicial systems. 

It was found, amid universal horror, that James Glasgow, 
a Revolutionary patriot, so popular that a county had been 
called in, his honor, Secretary of State since the adoption of 
the Constitution, by annual election, had been for years con- 
federating with John and Martin Armstrong and others, in 
cheating the State by the, issue of fraudulent -bon4 warrants. 

To secure the punishment of these criminals, the General 
Assembly, probably deeming it more convenient to have the 
trial at the place where was the Secretary's office, was induced 
to create an extraordinary court. It was to consist of at 
least two of the Judges, who were to meet at Raleigh for the 
purpose of trying this prosecution. While so convened they 
were authorized to hear appeal of causes accumulated in the 
district courts. They were to meet twice a year, and to sit 
not exceeding ten days at each term. Both the Attorney 
and Solicitor Generals were ordered to prosecute, and a 
special agent was authorized to prepare and arrange the 
evidence and attend the trial, the solitary instance in our 
history of the employment of a public " attorney," charged 
with the functions of an English " attorney," as distinguished 
from the barrister. The act was to expire at the close of 
the session of the General Assembly next after June 10, 1802. 

Notwithstanding the fact that Judge Haywood, moved by 
a fee of $1,000, which was of seductive magnitude in that 
economical period, resigned his judgeship to appear as 



36 History of the Supreme Court. 



counsel for the defence, the accused were convicted. We 
find the name of Greene replacing that of Glasgow in our 
list of counties, and the black lines of expulsion drawn 
around his name on the books of the venerable order of 
Masons. 

The General Assembly were persuaded to grant the con- 
tinuance for three years longer of such part of the act as 
provided for the meeting of the judges for hearing appeals, 
and to give the court a name, viz., the " Court of Confer- 
ence." The suspicion that the lawyers were pushing this 
measure for their own emolument, endangering the passage 
of the bill, the astounding provision was inserted, as a rider, 
that " no attorney shall be allowed to speak or admitted as 
counsel in the aforesaid court." I have called your attention 
to the fact that a similar ebullition of vulgar prejudice may 
likewise be found in the Fundamental Constitutions, drawn 
by the great philosopher John Locke, the ignorant legisla- 
tors and the learned metaphysician both guilty of the 
extreme folly, first, of endeavoring to shut out light from 
the minds of the judges, and, secondly, of supposing that 
such childish provisions could outwit the lawyers. I hope 
this august assembly will pardon me for saying that this 
"Locke on the human understanding'' was exceedingly 
weak. 

By the act of 1804, the Court was made a permanent 
court of record, the judges were ordered to reduce their opin- 
ions to writing, and to deliver the same viva voce in open 
court. 

In the following year the name was changed to that con- 
templated by the Constitution, the Supreme Court. An 
executive officer, the Sheriff of Wake, was given to it and 
the limit to the duration of the term was removed. 

In 1806, 'a great change was made in the Supreme Court 
system, for the purpose of relieving the people of long 
journeys for the purpose of attending to their court business. 
In modern days we cannot realize the evils in this respect 



History of the Supreme Court. 37 



under which our ancestors suffered. My old grandmother, 
who was married in 1788, said to me : " Talk about your 
bridal tours — in my day we had none. The only bridal tour I 
ever heard of was riding to the nearest judge to sign away 
the wife's land " Brides whose honeymoon devotion was 
equal to the sacrifice, were forced to traverse many scores of 
miles to reach a judge or a county court. Superior Courts, 
by the new law, were to be semi-annually held in each 
county. The counties were grouped into six circuits, called 
also ridings, but the judges were to ride in rotation. In 
other words, the existing system was adopted. Two new 
judges were created and four new solicitors. The Supreme 
Court now consisted of six, but two continued to be a quo- 
rum. The preamble of the act asserts that the old system 
caused such delays as often amounted to denial of justice, 
and the change was a great relief. 

As the judges for the last six years had not elaborated 
their opinions in such manner as met the approval of the 
profession, a law was passed in 1810 requiring them to 
write out their opinions " at full length," which mandate 
many young students of the law think was in after years 
occasionally obeyed with too much conscientiousness. For 
this additional labor they w T ere to be paid £50 ($100) per 
annum. They were at the same time to elect out of their 
number a Chief Justice. John Louis Taylor was the first and 
only judge that held this honorable office. The Governor 
was required to procure for the court a seal, with suitable 
devices and motto. Any party to a suit in the Superior 
Court was given right to appeal to the Supreme Court on 
questions of law. 

For fear that the requisitions as to the opinions would 
not be carried into effect, in the following year it was pro- 
vided, in substance, that the decisions of the court should 
have no validity until the opinions should be delivered pub- 
licly and in open court, stating at length the ground of 



38 History of the Supreme Court. 



argument upon which the opinions are founded and sup- 
ported, and also copies of the same delivered to the clerk. 

This completes the legislation prior to the creation of the 
present organization of the Supreme Court. Although the 
meeting of the judges at the seat of government to hear 
appeals was a great improvement on the preceding plan, it 
was impracticable to secure best results, while the Supreme 
Court was held by any two of six judges, coming to their 
labors after long journeying over horrible roads at the rate 
of three or four miles an hour, and yearning for a needed 
rest at home. Some of those judges were exceedingly able 
lawyers. Five of them — Taylor, Hall, Henderson, Ruf- 
fin, and Daniel — were eminent members of the new 
court. Besides these there were others worthy to sit with 
them ; for example, Alfred Moore, afterwards appointed 
to the Supreme Bench of the United States, and Henry Sea- 
well, one of the strongest criminal lawyers we ever had. 
Duncan Cameron, of large brain, who, abandoning law to be 
president of the chief bank of the State, became one of the 
most astute financiers of the land ; David Stone, called from 
the bench to be Governor and United States Senator. But 
they did not have the opportunity for profound and unin- 
terrupted devotion to the study of the principles of the cases 
before them, and that undivided responsibilit}' which stimu- 
lates to highest exertions. 

I have been somewhat minute in my notices of Ashe, 
Spencer and Williams, because they were the first judges, 
and because they sat together for seventeen years of the 
most important period of our history, ending five years after 
the adoption of the Federal Constitution. It would be a 
grateful task to give similar notices of their successors. Even 
the anecdotes of them which have been handed down should 
be recorded ; such, for example, as that of the simple-minded 
Lowrie, from the foot of the Blue Ridge, on his first trip to 
Edenton, stopping a lawyer in his argument, because, from 
his seat on the bench, he could look out on the bay and see 
the behavior of two vessels in a gale of wind. "Stop, Mr. 



History of the Supreme Court. 39 



Attorney, this Court sees one ship going one way and another 
going right opposite in the same wind and the Court does 
not understand it." And when taken on a visit to one of 
the vessels, stamping his foot on deck, with some alarm, say- 
ing, " I declare, men, I believe she's hollow." But I must 
content myself with giving, in the appendix, a list of the 
judges, with the dates of the beginning and ending of their 
terms. 

The year 1818 is the great epoch in the history of the 
Supreme Court/^hen we consider the stern economy preva- 
lent in the Legislature of that day, and the general prejudice 
against enlarging the official class, especially when lawyers 
only were to be visibly benefited, the creation of these new 
judges, at an aggregate expense of $7,500, to perform their 
duties at a place remote from the constituents of the mem- 
bers, is most surprising, and shows that there were very 
enlightened and influential men in the Legislature in 1818. 

I find in that body J. J. McKay of Bladen, Zebulon 
Baird of Buncombe, M. J. Kenan of Sampson, K. M. Saun- 
ders and Bedford Brown of Caswell, James Iredell the younger 
of Chowan, John Stanly, Wm. Gaston and Viser-Allen of 
Craven, John Winslow of Cumberland, Louis D. Wilson of 
Edgecombe, John B. Baker of Gates, David F. Caldwell of 
Iredell, Simmons J. Baker of Martin, Wm. B. Meares of New 
Hanover, A. D. Murphy, James Mebane and Willie P. Man- 
gum of Orange, Chas. Fisher of Rowan, and other strong 
men, a goodly array- of leaders of the people. Their meet- 
ing at this time was not the result of accident. It was a 
time when there was wild excitement about internal improve- 
ments. The great Erie Canal was in progress. The time 
was approaching when Governor DeWitt Clinton, with a 
company of great officials, traveled in a canal boat from Buf- 
falo to New York, and amid thunders of cannon passed into 
the ocean water, brought from Lake Erie. The spirit of 
canal and river improvements spread like a prairie fire in a 
windstorm. In North Carolina there were dreams of navi- 



40 History of the Supreme Court. 



gating our streams from near their sources to the ocean. 
Raleigh was to receive the vessels of Pamlico Sound up 
Neuse River and Walnut Creek to the crossing of Rocky 
Branch by the Fayetteville Road. Boats were to ascend and 
descend the Cape Fear and Deep Rivers to the Randolph 
hills. The produce of the Yadkin Valley, from the foot of 
Blowing Rock, was to cross over by canal to Deep River 
and be exported from Wilmington, and the puffing of steam- 
boats was to echo from the mountains which look down on 
the headwaters of the Catawba and the Broad. In vain a 
Chatham member vowed that in dry times a terrapin could 
carry on his back a sack of flour perfectly dry down Deep 
and Cape Fear rivers to Fayetteville. All warnings were 
unheeded. Civil Engineer Fulton was brought from Scot- 
land at a salary of $6,000 to make Asheville, Raleigh, Mor- 
ganton, Wilkesboro, Rutherford ton, Gaston and Louisburg, 
seaport towns. The Western people, cut off by long roads 
of mud and jagged rocks, clamored for State aid. The East- 
ern people, having by the old Constitution the Legislature 
by two-thirds majority in both branches, most of them hav- 
ing'eYefjr access to markets, sat heavily on the treasury box, 
and hence provoked a demand for a change of the Consti- 
tution. This eastern and western question aroused the 
fiercest passions and sent to the Legislature the ablest men. 
This body of enlightened representatives, the General 
Assembly of 1818, by the triumphant vote of 42 to 16 in the 
Senate, and 73 to 53 in the House, gave to the State the 
priceless blessing of a Supreme Court, and manned it with 
excellent Judges. The constitutional mode of voting for 
officers was, until 1835, by ballot. John Louis Taylor, 
Leonard Henderson, John Hall, Archibald D. Murphy, 
Henry Sea well and Bartlett Yancey were placed in nomina- 
tion ; Henderson and Hall were elected on the first ballot, 
and Taylor on the second. The great lawyer, Archibald Hen- 
derson, of Rowan, was nominated, but withdrawn, as he was 
unwilling to come in competition with his brother. 



History of the Supreme Court. 41 



The measure was strongly recommended by Governor 
Branch, who gave his personal observation of the evils of the 
old system. 

The creation of the Supreme Court was a wide departure 
from the old English system, and from that of our general 
government, in that its judges do not try cases in the courts 
below. The English system adopted in 1873 is, in great 
part, similar to ours. It is easy to see that Congress will 
adopt our plan before many years. It was feared by many 
that the efficiency of our judges would be impaired by not 
having their minds kept alert by occasional friction in 
actively-contested jury trials. These fears have not been 
realized. Amid all the changes and excitements, in peace 
and war, for seventy years, the Court has, as a rule, with 
only an occasional transient exception, possessed the full 
confidence of the people. From the beginning, its authority 
has been extraordinary, being accepted, with rare question- 
ing, not only by this State, but by the tribunals of other 
States. Under the old system there were very able judges. 
At one time on the appellate bench we had men of such 
uncommon strength as Taylor, Hall, Seawell, Ruffin, Daniel. 
At another period sat together Taylor, Hall, Seawell, Came- 
ron — an aggregate of talent and learning equal to the best 
bench of any State. But there was not that regularity of 
attendance, that continuity of work, that sense of individual 
responsibility which 'leads to best results. Under the new 
organization the great principle of division of labor, which 
has done so much in modern times for promotion of science 
and the arts, was adopted for our judiciary. The new judges 
were given salaries ample to enable them to discard all other 
pursuits, and devote themselves solely to the final settlement 
of disputed questions involving the lives, the fortunes, the 
happiness of the people. This grand and sacred trust could 
not be shirked or shared with others; they had every incent- 
ive and full opportunity and leisure to make themselves ex- 
4 



42 History of the Supreme Court. 



perts in their professions, and to labor continuously to acquire 
new learning and greater wisdom. They were placed on 
high in sight of all the people. The ablest men, with sharp 
and critical eyes, watched their actions, ready to detect a 
failure or reward success. They had an opportunity seldom 
vouchsafed to men to win the admiration and gratitude of 
their fellow- citizens by intelligent and faithful work. On 
the other hand, if, by ignorance or rash spirit of innovation, 
they should lose the public confidence, the representatives 
of the people, who, under the Constitution of 1776, had full 
power over them, would return to the old system, to their 
eternal disgrace. 

It was fortunate for the new experiment that, owing to 
miry and rocky roads, infrequent bridges and rough ferries 
over dangerous streams, and long distances from the seat of 
government, the members of the bar could not generally 
follow up their cases and argue them before the new tribu- 
nal. A few eminent lawyers found it profitable to devote 
most of their time specially to this practice. The spectacle, 
so often seen in these days of rapid transit, of counsel from 
a village where there is no law library, hurrying into the 
court-room, after a restless night on the cars, beginning his 
speech by apologies for want of preparation, was never seen 
in the early days of the Court. The Nestor of the Bar and 
distinguished ex-member of the Court (Judge Reade), once 
satirized this practice with that peculiar cayenne pepper 
pungency which so often made ignorant pertness of the bar 
flinch and false witnesses quail, and even pierced to the 
marrow a presumptous " D. D.," who, in a commencement 
address, assailed the honor of our profession. The Supreme 
Court bar, composed of such lawyers as Peter Brown, Moses 
Mordecai, Wm. Gaston, Geo. E. Badger, Thomas Ruffin, the 
elder, Archibald D. Murphy, Archibald Henderson, Henry 
Seawell, Gavin Hogg, Duncan Cameron, Joseph Wilson, 
James Martin, prepared with careful study their arguments, 
cogent in logic and mighty in language, and fortified by 



History of the Supreme Court. 43 



precedent. The judges, aided by this presentation of all the 
strength of both sides of the case, deliberated with patient 
care, decided with conscientious desire for the truth, and 
wrote their opinions elaborately and clearly, for the guid- 
ance and instruction of the profession. Such have been the 
uniform ability, learning and integrity of the members of 
the Court from the beginning, their freedom, as a rule, from 
partisan bias, that the people have, as we have seen, with 
wonderful unanimity, made it part of the fundamental law, 
one of the corner-stones which support our fabric of govern- 
ment, one of the main props of our social system. 

I will not describe in detail the constitution of the court. 
That can be found in the Constitution of the State and the 
code of laws. It is, however, a part of my duty to chronicle 
the principal changes from time to time in its functions. 

The number of the judges continued to be three until the 
Constitution of 1868 increased it to five. The Convention 
of 1875 reduced it again to three. Experience demonstrated 
that the business of the Court, settling the litigations of a 
million and a half of people, was vastly greater than existed 
for six hundred thousand people in 1818. It was and is a 
common belief that the late Justice Ashe had his life short-" 
ened by labors too arduous for his constitution. By an 
extraordinary majority, the number, in 1888, was by consti- 
tutional amendment increased again to five. 

Another change is in the mode of appointment of the 
Chief Justice. Until 1868 the designation of the judge 
who was to perform the honorary function of presiding was 
left to the judges themselves. From the beginning the safe 
rule was adopted, that the oldest in office should be chief. 
Henderson and Hall naturally yielded to Taylor, who had 
been for eight years Chief Justice with entire acceptability 
over the old court. When Ruffin, after serving as Chief 
Justice for nineteen years, resigned and came again to the 
bench in 1858, after the death of Chief Justice Nash, some 
were of opinion that he would be allowed to resume his old 



44 History of the Supreme Court. 



headship, but Pearson's claim to it under the unbroken rule 
was allowed without objection. By the Constitution of 1868 
the appointment of the Chief Justice is vested in the people. 
The Constitution of 1876 continues the provision, as well as 
the designation of the associates as "justices " instead of 
" judges." 

The salaries of the judges are exactly as fixed in 1818. 
Men have come and men have gone: population has in- 
creased threefold ; periods of prosperity have been followed 
by awful financial crashes and prolonged depressions in 
industrial efforts: near three thousand miles of railway have 
permeated our land, annihilating distance and economizing 
time, like the genii of oriental stories on their magic tapes- 
try : the men of the mountains and the men of the seaboard 
have become next-door neighbors ; markets, once possible 
of access only over roads almost impassable, and many days 
of toilsome and dangerous journeying, have been brought 
to our doors: the cultivated land has vastly increased in 
area : factories are humming, and mines are being dug: yet 
there stand the same old figures. 2.500. as if engraved on 
adamant, unchanged, though representing much dimin- 
ished purchasing power. The General Assembly, to all 
appeals to their liberality, make the answer that the s dan- 
is sufficient to attract the best legal talent and experience; 
and it is no flattery in me to say that the answer cannot be 
" traversed."' however we can " c nfess and avoid " it. 

When I say that the salary has not been advanced for 
seventy years. I am not unaware that in the dark days of 
our great civil war it was nominally raised. For the year 
1864 it was (8,000 per annum, and after January. 1865, it 
was ordered to be $7,000 per annum, but it was payable, by 
the terms of the law. in Confederate currency, and thus, in 
effect, in defiance of the Cons itution, it was greatly lowered. 
Applying the scale of depreciation, we find that the salary 
for 1862, was $1,35415; for 1863, §283 20; for 1864, only 
S117; and for the first quarter of 1865, the installment of 



History of the Supreme Court. 45 



$1,750, dwindled down to $17.50. At the end of 1861, it 
would buy 320 barrels of flour; at the end of 1862, 250 bar- 
rels; at the end of .1863, 30 barrels.; at the end of 1864, 
17 J barrels. The installment of $1,750, payable 1st April, 
1865, would buy 3 barrels. The steadfastness and pluck 
with which the judges performed their duties with this 
meagre allowance are worthy of all praise. 

The time of meeting of the Court has been several times 
altered. The first term began on the 1st January, 1819, 
and after that on the 20th days of May and November. 
This was the next year changed to the third Monday in 
June and last Monday in December. Soon after, the second 
Monday in June was substituted for the third, and these 
continued to be the days of the opening of the Court until 
the first Mondays of January and July were prescribed in 
the Constitution of 1868. The Constitution of 1876 oniits 
this provision, and the General Assembly of 1881 fixed the 
openings on the first Mondays of February and October, as 
at present. In 1846 the lawyers of the western portion of 
the State induced the General Assembly to order a term of 
the Court to be held in Morganton on the first Monday in 
August for all cases in the counties west of Stokes, Davidson, 
Union, Stanly and Montgomery, and for cases from these 
counties, with consent of both parties. The experiment was 
not satisfactory to the Court or to the profession. Owing to 
a want of a law library, " Morganton decisions," as they were 
called, were regarded as less certainly sound than those at 
Raleigh. The Constitution of 1868 fixed the sessions of the 
Court "at the seat of government ;" that of 1876 leaves the 
sessions at "the city of Raleigh, until otherwise ordered by 
the General Assembly." 

The judges of the Court, under the Constitution of 1776, 
were to hold office during good behavior, and were elected 
by the General Assembly. These provisions were not 
changed in 1835. Vacancies during the recess of the General 
Assembly were filled by the Governor and Council, until 



46 HlSTOKY OF THE SUPREME COURT. 



the end of the next session. Under the Constitution of 1868 
and 1876, the election is given to the people, the term of 
office is eight years, and vacancies are filled by the Gover- 
nor alone, until the next general election. What will be 
the ultimate result of periodical dependence on the will of 
the people, time will show. One effect is obvious. All the 
judges as a rule belong to the same political party, whereas 
the old Court had generally representatives of the two lead- 
ing parties. It is beyond my province to discuss the pro- 
priety of these great changes. Our ancestors in Colonial 
days yearned and struggled for the life tenure as necessary 
for the independence of the Court. Whether tenure at the 
will of the people will prove to be better than was the tenure 
at the will of the Crown or the Governor, experience will 
decide. And whether the transfer of the election of the 
judges from the General Assembly practical^ to the nomi- 
nating conventions, will be an evil, must be left to the future. 

By the supplemental act of 1818, if a judge of the Supreme 
Court should be incompetent to decide a case on account of 
personal interest in the event, or some other sufficient reason, 
the Governor was authorized to give a special appointment 
to a Judge of the Superior Court, requiring him to sit with 
the other judges pro hac vice. Under this law Judge Mur- 
phy acted at June Term, 1820, in place of Judge Henderson, 
who had been counsel in important cases before the Court. 
The validity of the will of Moses Griffin, under which the 
Griffin Free School in Newbern was established, was main- 
tained by this Court. The law was repealed in 1821. 

Since 1834 two judges have been authorized to hold the 
Court, "in case one of the judges is disabled from sickness or 
other inevitable cause," and this continues to be the law in 
substance, The Code changing " sickness " to " illness," for 
what reason I know not. It has been the practice to regard 
the death of a judge as a disability. This is in the spirit of 
its act, though hardly written in its letter, as at death the 
judgeship ceases and there is no judge who can be the sub- 



History of the Supreme Court. 47 



ject of disability. An interesting question would arise if a 
judge should, without any inevitable cause, but from sheer 
obstinate neglect of duty, fail to take his seat. It would 
seem that the other judges must await the removal of the 
offender by impeachment, or possibly two-thirds of both 
houses of the General Assembly might regard such contu- 
macious refusal, proof of " mental inability." I supppose, of 
course, this law will be amended so as to require three instead 
of two out of the five justices to be present in order to con- 
stitute a court. 

It was not until 1808 that there was any attempt made 
by law to furnish the people with the decisions of their 
highest legal tribunal. In that year the Clerk of the Supreme 
Court was directed to furnish the Secretary of State a report 
of the decisions of the preceding four years, and annually 
those made thereafter. There was no appropriation for the 
cost of publication, but advertisement was to be made for a 
printer to do the work at his own expense in consideration 
of the copyright for seven years, the State to have sixty-six 
copies free. In 1813, the same niggardly offer was made to 
the Clerk of the Court, the copyright being extended to the 
time granted by the laws of the United States. I think 
these laws led to no result, the reports of that day being 
published on private account. 

In 1818 the Supreme Court was authorized to appoint a 
Reporter at a salary of $500, on condition he should furnish 
the State, free of charge, eighty copies of the reports, and 
the counties sixty-two copies. I presume, though it is not 
expressly so said, that he was entitled to the copyright. 
Afterwards he was allowed to print 101 copies for the State 
and counties at the public expense, and was allowed a sal- 
ary of $300, and the copyright. In 185*2 his salary was 
raised to $600, and the number of copies for the State 
increased, so as to supply the libraries of the different States 
and Territories, and a few others. In 1871 the office of 
Reporter was abolished, and the duties and emoluments 



48 History of the Supreme Court. 



given to the Attorney General. Afterwards the salary was 
increased to $1,000, and the State assumed all the expense 
of printing, distributing and selling the reports in excess of 
those donated, and covered into the treasury the receipts of 
sales, less five per cent, commission for selling. The office 
of Reporter has always been considered a very honorable 
one, and has been much sought after by aspiring lawyers. 
The list of reporters in the appendix shows the truth of this. 

Of these, Murphy was one of the most energetic and use- 
ful men the State ever had in legislative and judicial capaci- 
ties. He was an enlightened laborer for public education 
and internal improvements. He collected valuable histori- 
cal material for writing a history of the State, for the expenses 
of which he was authorized by law to raise $15,000 by a lot- 
tery, but it was not successful. His collections passed into 
the hands of President Swain, and much of them may be 
found in the issues of the University Magazine published in 
his day. 

Dr. Hawks gave up a brilliant career at the bar for the 
Christian ministry, became an eminent divine, and an author 
of valuable historical works. Devereux was forced to sur- 
render a large practice in order to take charge of great 
estates which he had inherited. Puffin and Battle became 
Judges of the Supreme Court. Badger's great career as a 
lawyer, Judge, Secretary of the Navy, United States Senator, 
is well known. James Iredell, the younger, had been Speaker 
of the House, Judge, Governor, and Senator of the United 
States. Perrin Busbee was an able lawyer, one of the leaders 
of the Democratic party, and in the line of promotion to the 
highest offices. Jones was a sound lawyer, and a popular 
Whig. Winston, to be distinguished from Patrick H. Win- 
ston, of Bertie, was regarded as one of the most learned in 
law and history in his day. Phillips had been Speaker of 
the House of Commons, refused the tender of a Supreme 
Court judgeship, and was afterwards Solicitor General of the 
United States. McCorkle was a big-brained lawyer. I will 



History of the Supreme Court. 49 



not describe Shipp, Hargrove, Kenan and Davidson, first, 
because they are still alive, and, secondly, they held their 
post as Reporters by virtue of holding the higher office of 
Attorney General. This I will say, however, that if they 
had not towered high as lawyers, among the leaders of their 
respective parties, they would not have been chosen for the 
highest non-judicial law office in the State. 

The wonderful improvement in the style of the printed 
volumes was begun by Attorney General Kenan. 

The Clerks of the Supreme Court hold a most responsible 
office. Questions of great complexity are frequently referred 
to them. The duties require an excellent memory and busi- 
ness head, good knowledge of the law, great accuracy, per- 
fect integrity, untiring patience, and unfailing courtesy. 

The Court has been fortunate in its choice of officers. Their 
names are: Archibald D. Murprry, Wm. Robards, Edmund 
B. Freeman, Wm. H. Bagley, Thos. S. Kenan (the present 
incumbent). The Clerk at Morganton was Jas. R. Dodge. 

While they all met the approval of the Court, for their 
intelligence and fidelity, I notice specially Edmund B. Free- 
man, as having been identified with the Court for a third of 
a century. The following lines by Mrs. Mary Bayard Clarke, 
though not historically perfectly accurate, are very touching : 

" The old Clerk sits in his office chair, 

And his head is white as snow; 
His sight is dim and his hearing dull, 

And his step is weak and slow; 
But his heart is stout and his mind is clear 

As he copies each decree, 
And he smiles and says as the judges pass, 

' 'Tis the last court I shall see.' 
But he lingers on till his work is done, 

To pass with the old regime, 
When he lays his pen, with a smile aside, 

To stand at the Bar Supreme; 
For the old Clerk dies with the Court he served 

For forty years save three; 
And breathes his last as the judges meet 

To sign their last decree." 



50 History of the Supreme Court. 



The Court was authorized to appoint a Marshal in 1841, 
Previous to that time the Sheriff of Wake was its executive 
officer at the term held in Raleigh. The Sheriff of Burke 
was always its officer at the Morganton term. The names 
of the marshals were: J. T. C. Wyatt, James Litchford, 
David A. Wicker, Robert H. Bradley (the present incum- 
bent). 

It may interest you to know that Mr. Litchford, when 
pursuing, in early life, his business as tailor, had an appren- 
tice boy, who, in company with several companions, threw 
stones at the house of one who had offended them. Dread- 
ing prosecution, he left Raleigh for a western home. In 
1867 he returned as President of the United States. It was 
Andrew Johnson. 

There have been important changes in the jurisdiction of 
the Court from time to time. 

By act of 1799 the Court therein organized had jurisdic- 
tion of questions of law or equity which any judge on the 
circuit was unwilling to decide, or on wbich there was a dis- 
agreement between the judges. 

By act of 1810, any party dissatisfied with the ruling of 
the Superior Court had a right to remove it to the Supreme 
Court. By the act of 1818 the judges were to have all the 
powers of the Superior Court Judges, except that of holding 
a Superior Court. Any party could appeal from the final 
judgment, sentence or decree of the Superior Court on giv- 
ing security to abide the judgment or decree of the Supreme 
Court, which was authorized to give such judgment as 
should appear to them right in law, to be rendered on 
inspection of the whole record. Equity cases could be 
removed to the Supreme Court for hearing, upon sufficient 
cause appearing, by affidavit or otherwise, showing that 
such removal was required for purposes of justice, but no 
parol evidence was received before the court, or any jury 
impaneled to try issues, except witnesses to prove exhibits 
or other documents. Under this provision it became cus- 



History of the Supreme Court. 51 



tomary to remove all important equity causes, so that the 
Superior Court Judge escaped the responsibility of giving 
any opinion in the matter. The Constitution of 1868 and 
that of 1876 put a stop to these proceedings by confining 
the jurisdiction of the Supreme Court to appeals on matters 
of law or legal inference. In 1830 original and exclusive 
jurisdiction was given to this Court for vacation and repeal 
of grants and letters patent, for fraud, false suggestion or 
other cause, but this power was also swept away by the same 
constitutional provision. The provision of the Constitution 
giving to the Court original jurisdiction to hear claims 
against the State, and to report their decisions to the Gen- 
eral Assembly, has been construed by the Court to embrace 
only cases involving questions of law. 

These are the principal changes made, specially by law, 
in the functions of the Court. But there was a mighty 
mass of changes in the character of their work thrown on 
the judges, by the Constitution of 1868, and the transplant- 
ing to North Carolina the Code of Civil Procedure, first 
elaborated in New York. The Constitution of 1776, even 
as amended in 1835, was founded on the assumption that 
the agents of the people, the General Assembly, would be 
honest and have such stake in the soil that they could be 
intrusted with powers almost unlimited. They could tax 
any subject to any amount, and exempt any subject from 
any tax at all. They had boundless right to pledge the State 
credit. They had, as I have shown, vast powers in the con- 
trol of the other departments of government. They had 
full discretion as to nearly all subjects of legislation. 

The Constitution ratified in 1876, which is merely an 
amendment of that of 1868, is founded on the assumption 
that the representatives may be untrustworthy. Hence, the 
executive and judicial departments are made really inde- 
pendent of the legislative. Hence, there are limitations on 
the taxing power, and on the power of pledging the State 
credit. Hence, are made a part of the fundamental law 
numerous provisions, declaring what the General Assembly 



52 History of the Supreme Court. 



must do, what it may do, and what it may or may not do. 
Many provisions seem properly to belong to the statute 
books, to be modified or amended whenever the interests of 
the people require. 

The General Assembly of 1868, being composed largely 
of the dominating spirits of the Constitution of that year, 
adopted the Code of Civil Procedure, framed to carry into 
effect the modern innovations in judicial proceedings, with- 
out attempting to harmonize them with the former habits 
of our people. Many of the members of the General Assem- 
bly, accustomed to the freedom allowed by the old Constitu- 
tion, framed and voted for enactments without such care- 
ful compliance with the minute provisions of the new instru- 
ment as judges are bound to exercise. 

Moreover, the amendments to the Constitution of the 
United States, recently adopted, contain guarantees of privi- 
leges and immunities to the freed men which, from life-time 
experience of different relations, it was difficult to under- 
stand and appreciate thoroughly, and which it required the 
Supreme Court of the United States to elucidate and settle. 

Then, too, the difference of opinion between President 
Johnson and Congress as to their respective powers in restor- 
ing the States which attempted secession, the subversion of 
the State government set in motion by the authority of the 
President, and the substitution of one under authority of acts 
passed by Congress, led to discussions and recriminations, 
alienations and discord, and in certain localities even to 
strife. 

All these innovations and experiments, and political and 
constitutional difficulties, threw vast responsibilities and 
peculiar perplexities on the Court, whose action, while not 
escaping adverse criticism, was, in the main, conservative 
and wise. The judges, trained under the old Constitution 
and legal procedure, have not obstinately impeded the legis- 
lative will, however unpalatable. As interpreted by them 
and amended by the Assembly, the changes seem accepta- 



History of the Supreme Court. 53 



ble to the lawyers, whose practice has been mainly under 
them. The decisions of the Court on questions growing out 
of the reconstruction laws have been sustained by the high- 
est tribunal of the land and acquiesced in by all. Neither 
the people nor the Assembly have resented the frequent 
declaration of unconstitutionality of legislative acts. On the 
contrary, the people applauded some of these decisions as 
preserving them from burdensome taxation. 

Another ordeal in the history of the Court, which few tri- 
bunals ever pass through unscathed in character, was the 
civil war. I think it may be said of our Supreme Court that 
it did not on the one hand so share in the prevaling excite- 
ment as to arrest improperly the laws in aid of the war 
power, or on the other to embarrass the military authorities 
by unreasonable interference. In defiance of unpopularity 
and even threats, when the most desperate exertions were 
put forth in the unequal contest, writs of habeas corpus issued 
by the judges were executed in camps within the sound of 
the enemy's cannon. And so decisions in favor of military 
powers of the Confederate Government are such as have 
been approved by the judicial authorities in favor of the 
military powers of the United States. The Constitution of 
the Confederacy on this subject is identical with that of the 
United States. , 

I witnessed an interesting scene in the Convention of the 
reunited Episcopal Church, held in Philadelphia in Octo- 
ber, lcS65. A proposition was made to petition Congress to 
exempt candidates for the ministry from military service in 
future wars, and it seemed to meet with favor. One of the 
members from the South, a Judge of the Supreme Court of 
North Carolina, arose and opposed the resolution in strong 
language and convincing reasoning, sustaining the right of 
the government in times of war to the service of all its citi- 
zens, and their duty to render such t service. The speech 
made a great impression on account of its being from a 
Southern man, and also because of the evident familiarity 



54 History of the Supreme Court. 



of the speaker with the whole question. It was telegraphed 
to the leading papers of the North. The resolution was 
killed at once. The speaker was Judge Battle, giving his 
carefully prepared opinion on the substitute case of Gatlin 
v. Walton, in which it was decided that Congress can con- 
script a man who has furnished a substitute under a former 
law ; that one Congress cannot bind a subsequent Congress, 
or even itself, from calling out, if necessary, all the able- 
bodied men of the land, and is the sole judge of such 
necessity. 

That the Court has given satisfaction, on the whole, to the 
profession and the people, is shown, as I have stated, by the 
strong hold it has upon their respect and confidence. It 
has been diligent in expounding the principles of the common 
law and applying them to the facts of the cases before them. 
When the principles of the common law or of equity, as 
established in England, are not suited to the condition of a 
new and unsettled country, it has changed them under the 
doctrine, cessante ratione cessat ipsa lex. 

It would be most interesting and profitable to show, in 
detail, the various departures from English precedents, and 
the causes therefor, such as " waste" and " pin-money trust," 
" wife's equity for a settlement," " past performances," " cy 
pres," "purchasers seeing to the application of purchase 
money," and so on. It would be equally interesting, but 
presumption, perhaps, to discuss whether the Court might 
not advantageously have refused in other cases to follow 
English precedents, which they admitted to be bad law; but 
these inquiries belong, more properly, to the history of the 
law than of the Court. Certainly, I have not time to go into 
them now. 

In the appendix will be found a complete list of the judges 
since 1818, grouped into four periods, the first ending with 
the vacation of all the offices of the State in April, 1865; 
the second ending with the close of the provisional govern- 
ment inaugurated by President Johnson, July 1, 1868; the 



History of the Supreme Court. 55 



third ending with December 31, 1878, during which there 
were five judges; the fourth coming down to January 1, 
1889, during which period there were three Judges. 

I will give short notices of those of the judges who have 
passed away, more particularly of those who were longest 
members of the Court and had most to do in moulding its 
character. I begin, of course, with the first Chief Justice, 
John Louis Taylor. 

It would be difficult to imagine how a man could have 
had a better training for the position of Chief Justice than 
John Louis Taylor. He was at his election forty-nine years 
old; was educated at the College of William and Mary, an 
institution of high character in those days, the college of 
Jefferson, Madison, Monroe, Winfield Scott and Bishop 
Ravenscroft, and above all of Chief Justice Marshall. He 
was one of the leaders of the bars of Fayetteville and New- 
bern, until elevated to the Bench in 1798. He rode the cir- 
cuit for twenty years, and was a faithful attendant on the 
Court of Conference. As already stated he was made Chief 
Justice of the Supreme Court of 1810-18. He showed his 
devotion to his profession by publishing, in 1802, reports of 
cases determined in the Superior Courts of North Carolina, 
and in 1814 two volumes of " biographical sketches of emi- 
nent judges, opinions of American and foreign jurists, and 
additional reports of cases determined in our courts," under 
the title of the " North Carolina Law Repository," and after- 
wards a third work, containing reports of cases adjudged in 
the Supreme Court of North Carolina from 1816 to 1818. A 
charge to the grand jury of Edgecombe was of such excel- 
lence as to be published at the request of that body. In 
conjunction with Henry Potter and Bartlett Yancey, he, at 
the request of the General Assembly, revised the statute laws 
of the State and enumerated the statutes of Great Britain in 
force in North Carolina. In early life he had been an active 
member of the General Assembly. His judicial labors had 
been eminently satisfactory. His opinions showed that he 



56 History of the Supreme Court. 



possessed a style not only clear but eloquent. His literary 
taste was conspicious; his manners elegant and winning. 

John Hall, of Warrenton, was by two years the senior of 
Taylor. Like him, he was trained at William and Mary 
College. Unlike him, however, he did not have the gifts for 
rapid success at the bar. He won his way by persevering 
industry and faithfulness to duty, by constant study, and 
strictest integrity. He was elevated to the Bench in 1800, 
and held his place continuously until called to the new 
Supreme Court. He was not brilliant, but he was eminently 
a safe lawyer. He had a clear vision for the true points of 
a case, and had a wide-spread reputation for good sense. His 
language was plain, but clear and forcible. He was forced 
by disease to resign a year before his death. 

Leonard Henderson, of Granville County, son of Judge 
Richard Henderson, of Colonial times, was seven years older 
than Taylor. He was, sometime in early manhood, Clerk 
of the Court for the district of Hillsboro, an office of consid- 
erable dignity. His reputation as a sound and able lawyer, 
and his popular manners, led to his election as Judge in 
1808. During his eight years' service, he gave eminent satis- 
faction. The public favor towards him and Hall was shown 
by his election to the new Court on the first ballot over 
Taylor, Seawell. Murphy and Yancey, among the ablest 
lawyers of that period. *He was Chief justice from 1829 to 
his death in 1833. 

Chief Justice Henderson had a vigorous, self-reliant mind, 
well stored with the principles of the law. He brought the 
questions before him to the test of sound reasoning. He 
was a conscientious seeker for the truth, and had great 
weight as an upright and wise Judge; but in culture and 
genius, and love of, and capacity for, labor, was decidedly- 
inferior to his successor. His genial manners and kindly 
temper gained him great favor with the public. 

When these great men one by one passed away, leaving 
legacies of sound opinions for the better understanding of 



History of the Supreme Court. 57 



the law, the Court had a good measure of popular favor. It 
was raised to still loftier fame by their immediate successors. 
Providence vouchsafed to us judges of equal integrity, of 
still greater ability, and a longer term for efficient work. 
For sixteen years — 1832 to 1848 — Ruffin and Daniel sat 
together on the bench ; for eleven years of this time Gaston 
was their coadjutor. No State of the Union, perhaps, not 
even the United States, ever had a superior Bench ; few ever 
had its equal. At home and abroad their decisions, as a 
rule, had the weight of established and unquestioned law. 

Of the three the Chief Justice was, undoubtedly, the 
ablest lawyer. He was in his prime, forty-six years old, 
when he entered on his great judicial career. He was a 
graduate of Princeton. He had an exceedingly strong mind, 
untiring industry and uncommon powers of labor. When 
interested in great cases he would work all night, without 
dropping his pen, and be none the worse in health for it. 
When at the bar, traveling by night, he attended the courts 
of Person and Granville and the Circuit Court at Raleigh 
in the same week, a mule, instead of a locomotive engine, 
being his motive power. He read much and retained all 
he read. He had been a judge in 1816, and again of the 
Superior Court in 18'25. He had, as president, extricated 
the old State Bank from its troubles. He had experiences 
in the General Assembly, and presided as Speaker of the 
House. In all these positions it was his habit to treat thor- 
oughly and exhaustingly every subject which came before 
him. His opinions are elaborate and learned treatises on 
the questions involved. What Judge Pearson said of his 
opinion in Hoke v. Henderson, "that mine from which so 
much rich ore has been dug," may with equal truth be said 
of hundreds of others. Hard cases were not quicksands of 
the law to him. With inexorable logic he carried out the 
principles of the law, in criminal and civil cases, without 
being swerved by appeals for relaxation on grounds of 
5 



58 History of the Supreme Court. 



hardship. Without hesitation he joined Gaston in sending 
Madison Johnson to the gallows, on the doctrine that pre- 
existing malice is presumed to be continued down to the 
killing, notwithstanding intervening provocation, although 
many of the ablest members of the bar agreed with Dan- 
iel's dissenting opinion. He never doubted, in excluding 
evidence of the violent character of the deceased, in Bar- 
field's trial for murder, although Battle's dissenting opinion 
has been since recognized as good law. I saw him in the 
Convention of 1861, fiercely indignant at the proposition to 
abolish corporal punishment. His reply to the argument 
that it was an outrage to whip a free man, was with bitter 
emphasis: "Whip a free man! No! Whip a rogue! Whip 
a rogue." I saw him sentence a young white fellow, of 
eighteen years old, in Alamance County Court, for stealing 
money out of a dwelling-house. " Young man, in consid- 
eration of your youth, the Court will deal leniently with 
you, in the hope that you will reform and lead a better life." 
I watched the. buy's face. It brightened as he heard these 
words, but it was only for a moment, for the Chief Justice 
added : " Sheriff, take him to the whipping-post and give 
him thirty-nine lashes on the bare back." He was not a 
cruel man, but the doctrine, justitia fiat, ruat ccelum, was a 
reality to him. For twenty-three years he was, as the pre- 
siding officer of the Court, the greatest factor in moulding 
the law of the State. After resigning his post, at the age of 
sixty-five, he was, six years afterwards, induced by an almost 
unanimous vote of the General Assembly again to take a 
seat on the Bench, but in eighteen months he finally retired 
to the charge of his farm, complying, however, with occa- 
sional calls for his services on critical occasions. 

Joseph John Daniel, of Halifax, was likewise in the prime 
of life, about the age of the Chief Justice. He had a large 
brain, but lacked ambition. To the business in hand he 
addressed himself with conscientious industry and rare abil- 
ity. But he cared nothing for winning reputation by exhaus- 



History of the Supreme Court. 59 



tive discussions of collateral points not before the Court. He 
wrote not treatises on the general subject. He had a won- 
derful memory, probably a more extensive and accurate 
knowledge of history, especially of the law, than any man 
in the State, but he made no display and left no written 
record of it. His early training was at our State University. 
His opinions are short, but clear and strong and lucid, dis- 
tinguished for lucidity and terseness. In private life he was 
singularly unostentatious and charitable and generous. He 
had only one fault, a habit contracted in early days. Uncle 
Toby's recording angel was often called on to blot out the 
careless words which the accusing spirit carried up to 
Heaven's chancery. I give one case in point to relieve the 
tedium of my narrative. He was once in church, at which 
he was a regular attendant, in company with Judge Ruffin, 
when the inexorable collector, with the inevitable plate, came 
to his seat. He felt in all his pockets but could only find a 
$5 gold piece. " Ruffin, lend me a quarter." The Chief Jus- 
tice shook his head. " Lend me a half." A second shake inti- 
mated that this coin could not be had. " Lend me a dollar," 
and when his companion for the third time expressed his 
inability to supply his wants, he slammed the gold piece 
into the plate, saying in desperation " D — n you, go !" 

Notwithstanding this failing, Daniel was conspicuous for 
his obedience to the " Golden Rule." He is said not to have 
had any eloquence as an advocate, but made his way by 
learning and diligence. 

William Gaston, the third member of the Court, and the 
oldest of the three, although he had not the reputation of 
Ruffin for learning in the law, nor of Daniel for learning in 
history, yet, for a broad, statesmanlike view of legal princi- 
ples and acquaintance wuth literature, was unexcelled. He 
was more of a statesman and had greater oratorical gifts 
than either. As a member of Congress he impressed Web- 
ster and Clay and others as one of the great men of the 
nation. His long service in our General Assembly and in 



60 History of the Supreme Court. 



the Convention of 1835 was distinguished by the liberal 
and intelligent views he took of all public questions. He 
was in 1818 the author and able advocate of the Supreme 
Court bill. His name was given to a western county because, 
although he was an eastern man, he had the pluck to advo- 
cate a convention for doing justice to the west. It was 
given to a town on Roanoke river, which had visions of 
future greatness, because, though his constituents lived on 
navigable water, he advocated giving State aid to the 
improvement of the interior streams. It was his personal 
example which made our people lose their fear of Catholics, 
and his eloquent advocacy that removed the anti-catholic 
clause from the Constitution. Beginning the practice of the 
law at the age of twenty in 1798, the year of Taylor's elec- 
tion to the Bench, he had a successful career as a practitioner, 
for thirty-five years, before being called to the Bench. He 
brought to the aid of the Court his extraordinary popularity, 
and elegant literary style, large legislative experience, and 
extensive learning in the law. 

All the three judges had great natural intellects— all had 
industry, all had unimpeachable rectitude of purpose, all of 
them had the unlimited confidence of the bar and laity, 
ail of them were of a conservative temperament, all of them 
were filled with the desire to decide correctly the cases 
brought before them, and to give right reasons for their 
decisions. Their personal relations were harmonious. Orange 
was then a western county, so that Ruffin was a western 
man ; Daniel a middle county, and Gaston an eastern man. 
They represented the two great parties of the day. These 
three great men had just the qualifications and habits to 
strengthen the Court. 

On the resignation of Ruffin, Frederick Nash, under the 
rule of seniorit}' in service, became Chief Justice, and held 
the office until his death in 1858. After sixteen years' ser- 
vice as Superior Court Judge, he was elevated to the Supreme 
Court at the age of sixty-three. Succeeding Gaston, and 



History of the Supreme Court. 61 



sitting with Ruffin and Daniel, whose powers had been 
increased by years of study of great questions and practice 
in writing opinions, his reputation was subjected to a most 
trying ordeal. He proved himself a sound and able judge, 
and his lofty character, in which all the virtues were har- 
moniously blended, his great popularity, gained by his 
unfailing courtesy and kindly heart, continued and strength- 
ened the public confidence in the Court. As Mr. F. H. Busbee 
well said in an address in presenting a portrait of the Chief 
Justice to the Court, " clear in his conception of the law, 
well-versed in its precedents, of singular felicity of language 
and chasteness of expression, with a simplicity and terseness 
that would have honored Westminster Hall, he has left 
opinions which may well bear comparison with those of his 
great co-laborers." 

Before coming to the Bench, Chief Justice Nash had large 
public experience. He had a full practice at one of the most 
cultured bars of the State, that of Newbern. He distinguished 
himself for his readiness, courtesy, firmness and strictest 
impartiality in the difficult post of Speaker of the House of 
Commons. In all respects, he was a wise and well-balanced 
man. 

The successor of Nash, Chief Justice Pearson, acted a great 
part in the legal history of our State. He was a judge for 
forty-two years continuously, with the exception of the eight 
months' vacancy in 1865. Of these, thirty years were spent 
on the Supreme Court Bench ; during twenty of them he 
was Chief Justice. He entered on his judicial career at the 
age of thirty-one, after a few years' service as a legislator and 
a large practice at the bar. His mind was singularly clear, 
strong, incisive, bold and independent. While he had no 
appearance of self-conceit, he had perfect confidence in his 
own conclusions. He had no ambition to excel in literature 
or politics. He despised verbiage, surplusage, shams. He 
was impatient of efforts to shine in oratory or accumulations 
of learning. I tried a flight of eloquence on him once. I 



62 History of the Supreme Court. 



saw his eyes begin to look deadly, and I fell to earth at 
once. I recall his disgust at the sight of a distinguished 
lawyer carrying into court a wheel-barrow full of books, 
with which to fortify his argument. He was kind in com- 
plimenting a clearly-cut, well-prepared argument, but a 
speech designed for the glory of the speaker was apt to meet 
with a sarcasm. His mind was steeped in law. He loved 
clearness and strength. He was fond of meeting legal diffi- 
culties by homely comparisons and phrases. The story of 
the Memphis lawyer weakening the force of one of his 
opinions by repeating to the jury a long array of his homely 
illustrations, may have been true. His wit consisted in 
unexpected application of legal language to non-legal sub- 
jects. Governor Caldwell said to him, when they were both 
young, "Pearson, why did you let the Bishop confirm you? 
You know you are not a fit member of the church." " Well," 
replied he, " when I was baptized, my sponsors stood security 
for me. I thought it dishonest to hold them bound for me, 
and I surrendered myself in discharge of my bail." I said 
to him once — he was always friendly and kind to me — 
" Judge, please decide a question of law for me: I have two 
brothers paying me a visit. One is named William and the 
other Wesley. A lady in town has sent an invitation to 
'Mr. W. Battle.' Whom shall I advise to accept it?" 
" Well, on the principle that every deed is construed most 
strongly against the grantor, I decide that both should go." 

These stories bring out another phase of his character. 
He was wonderfully genial and kind, especially to young 
men. This trait made him idolized by his law students. It 
entered into his decisions. He was watchful for circum- 
stances which could mitigate murder to manslaughter, which 
could make a case one of larceny rather than one of high- 
way robbery. His leaning was towards mercy. 

The Chief Justice became a power in the State. His learn- 
ing and acuteness and industry made him famous as a lawyer. 
His students spread abroad his fame as a law-teacher. 



History of the Supreme Coubt. 63 



When he was nearing his three-score and ten years, his pop- 
ularity became suddenly eclipsed by his rulings in the cases 
against Kirk and Bergen. I will not, of course, enter on a 
discussion of these matters. He has placed on record in the 
65th volume of the Reports an unequivocal denial of all 
charges that he was actuated by any motive but carrying 
out what he considered his duty under the law. His four 
associates united in declaring that his rulings had their con- 
currence, and after his death leading members of the 
bar bore admiring testimony to his character, and his old 
law-students, among the most eminent citizens Of our State, 
reared in Oakwood Cemetery, near Raleigh, a monument to 
his memory. 

Associated with Chief Justice Pearson for many years was 
William Horn Battle, of Orange. He was closely connected 
with the courts of the State for over a third of a century, 
beginning with his joint reportership in 1834, and ending 
in 1868, when, in common with all candidates not nomina.- 
ted by the then dominant party, he failed of re-election. His 
re-publications of annotated editions of the early Reports, his 
labors as Reporter and in preparation of the Revised Statutes 
of 1835 and his Revisal of 1873, and also of the four volumes 
of his Digest, gave him a thorough knowledge of the statute 
law of the State and decisions of the courts. He began his 
judicial labors in 1840, when 38 years old ; was a Judge of 
the Superior Court for about twelve years ; this period 
of service was broken into by a short term on the Supreme 
Court Bench in 184S, by appointment of Governor Gra- 
ham. He had a continuous service on the Supreme 
Court Bench, from his election in 1852, excepting the 
short interval of 1865, when all the offices were vacated, 
for sixteen years. From 1845 to his removal to Raleigh in 
1868, and for two years before his death, he was principal of 
a law school and nominally Professor of Law in the Uni- 
versity, but received no salary from the institution, and was 
not responsible for the discipline. After his retirement from 



History of the Supreme Court. 



the Bench in 1868, he practiced law in Raleigh, and was for 
a short time President of the Raleigh National Bank. Dur- 
ing the last twenty years of his life, he took great interest 
in the legislation of his church, being a delegate to its Dio- 
esan and General Conventions. In lieu of any observation 
of my own, I give an estimate of his judicial character in 
the words : Mi Justice Merrimon, extracted from his 
address at the meeting of the Supreme Court Bar after his 
death in 1 " 

"Judge Battle was a well-res instating and sound law- 

yer. He was well grounded in the great principles of the law, 
and was specially familiar with the law and judicial decis- 
ions of our own State Indeed, there has been no lawyer 
more learned than he in the laws of this State. He was 
redingly fond and proud of his profession ; he upheld its 
honor always and everywhere, and he was an honor to it. 

• He was a learned, patient and upright judge. His judi- 
cial opinions were well considered and able, some of them 
strikingly so, and they afford an enduring monument to his 
memory, while they reflect high distinction on the Bench of 
the State 

It: me add, for the edification of the younger members of 
the bar, an anecdote of Judge Battle. In his early days at 
the bar he was n : I successful in getting practice. In fact, he 
said that but for the encouraging words of his wife he would 
have abandoned the profession in despair. The depression 
of spirit on this account preyed on his health. His physi- 
cians, according to the practice of the old school, advised a 
whiskey toddy before breakfast. He tried the remedy for 
some days. One morning, while dressing, he suddenly said, 
" I have resolved not to take another glass of whis k His 

wife said Why. I though: :: was doing you good." "Per- 
haps you are right," said he, " but I found myself dressing fast 
in order to get to my drink, and I know, by that, it is danger- 
ous." Such was his dread of that terrible poison, which has 
slain hundreds of our bright and promising lawyers, some 
of them, even in early life, the leaders of the bar. 



History of the Supreme Court. 65 



Matthias Evans Manly was the last of the old ante- war 
Court. He was a strong-minded and able man. Like Judges 
Pearson, Battle and Ashe, he graduated at our University, 
all of them among the best scholars of their classes. Being 
a good mathematician, he was employed, after graduation, 
as an assistant in the mathematical department, and on a 
vacancy in the professorship, offered to take charge of the 
department. Although deemed qualified, his youth was con- 
sidered an objection, and Dr. James Phillips was elected^ 
He then addressed himself to the law, and soon reached the 
top of his profession. His judicial career extends from 
1840 to 1865, twenty-five year?, during nineteen of which 
he was on the Superior Court Bench. He was elected to the 
Supreme Court in 1859, on the final retirement of Judge 
Ruffin. 

Judge Manly was a very sound and well-read law}^er. He 
had not the manners of a successful politician. He forced 
his way by unbending principle, unwavering faithfulness to 
duty, intellectual force and dauntless pluck. When on the 
Superior Court Bench he had the undoubting confidence of 
all in his ability and learning and love of justice. But he 
sometimes lost patience with the prolixities and wranglings 
and apparent endeavors to take advantages, of which mem- 
bers of the bar in their zeal are sometimes guilty. His lan- 
guage and manner were, on such occasions, more caustic 
than was agreeable to the victims. I saw him once admin- 
ister a rebuke to two of the most emiment practitioners of 
the State. "I do not sit here," he fiercely said, " to listen to 
the angry wranglings of attorneys. They must cease." 
There was no more indecorum during that term. 

Judge Manly was on the Supreme Court Bench only 
about six years. During most of this time, while the great 
civil war was raging, the number of cases before the Court 
was greatly diminished. He had not, therefore, the oppor- 
tunity of rivaling the reputation of the greatest judges of 
the old Court, but his opinions are clear and forcible, and 



66 History of the Supreme Court. 



show that he was a learned and able judge. He was Speaker 
of the State Senate in 1866. The General Assembly for that 
year elected him Senator of the United States, as a colleague 
of Win. A. Graham, but neither was allowed to take his seat. 
He died on June 10, 1881, with the universal respect and 
confidence of the people. 

It is not within my plan to give notices of the living, so I 
will only mention that after a distinguished career at the 
bar, in Congress and in the Supreme Court, which he 
reached after serving about four years as a Superior 
Court Judge, Edwin Godwin Reade, now most ably pre- 
siding over a national bank, is the last survivor of the 
judges of our highest tribunal elected by the General Assem- 
bly. Of those elected by the people three have gone to their 
final homes. Of these Xathaniel Boyden came to the Bench 
at a greater age than any other of all the judges — at three 
score and sixteen. He had been an active member of the 
bar for forty-eight years, had been a member of the State 
and Federal legislatures, but had never held a judicial 
office. He had a mind of a high order, was a most adroit, 
zealous and successful practitioner, possessed abundant 
learning in the law, and was a conspicuous figure in the nisi 
jjrius courts of the State. If he had come to the Supreme 
Court Bench at an earlier age, and had larger practice in its 
duties, he would have won high distinction as a judge. 

Thomas Settle was eminently fitted for political life. He 
had great force of character, uncommon oratorical powers, 
a bold and independent spirit, a high order of ability, and 
exceedingly agreeable manners. The campaign between 
him and Zebulon B. Vance for Governor in 1876, will long 
be remembered for its brilliancy, only equaled, according 
to tradition, by that between Graham and Hoke in 1844. 
He was a successful practitioner in the courts, winning fame 
as Solicitor of his circuit in the prosecution of criminals. 
He was a ready and accomplished presiding officer of our 
State Senate and House of Commons. His heart was not in 



History of the Supreme Court. 67 



the judgeship, as was shown by his twice resigning his seat 
in order to enter the political field. His opinions, though 
pointed and clear, do not show the learning and logical 
powers of the old-time judges. He had the ability, however, 
to become a great judge, if his ambition had taken that 
direction. 

Thomas Samuel Ashe, a lineal descendant of one of the 
first three Supreme Court Judges of free North Carolina, 
was after the best type of our great judges. After an emi- 
nent career at the bar and in the State Legislature, and as 
Confederate States Senator and member of the Lower House 
of Congress of the United States, he came to the Supreme 
Bench by popular election in 1878, at the age of sixty-six. 
He died in February 1887, after eight years' service. He 
threw his whole strength into his work. He endeavored to 
make up for the time lost from the law while engaged in 
exacting legislative duties, and time-consuming practice in 
the Superior Courts, by close and unremitting study, trench- 
ing on the hours needed for repose. He succeeded in adding 
to his already great reputation for ability, and by the 
strength and learning displayed in his opinions he won a 
place little inferior to the best of his predecessors. It is 
believed that the severe labors his conscientiousness forced 
on him shortened his life. 

Judge Ashe was one of a type not often found among us 
in these nervous and impetuous days — the old-school gen- 
tleman. He was tall, stately, dignified, courteous, respectful 
to all, and exacting respect from all. Washington was of 
that pattern, and Generel Lee, and Governor Graham, and 
General Samuel F. Patterson, and Chief Justice Nash. It 
is impossible to imagine an unworthy act by such men. 
But under his self-contained exterior was abundance of fire, 
and under his grave manner abundance of humor. I have 
never seen the fire flash, but I have seen the humor play 
over his countenance like sheet lightning over a summer 
cloud. I recall his hearty laugh when he told me how, after 



68 History of the Supreme Court. 



the University had conferred the degree of Doctor of Laws 
(LL. D.) on himself and Judge Dillard, he went into the 
latter's room and found him investigating a knotty case, 
lately argued before the Court, and Saluted him thus : 
"Good morning, Doctor Dillard." "What do you mean," 
replied he, looking up from his papers and books. " What 
do you call me doctor for?" "Haven't you read in the 
morning paper," said Judge Ashe, " that the University has 
made us Doctors of Laws?" "Well!" said Dillard, gloomily, 
" am I not a great Doctor of Laws, when I cannot, for the 
life of me, tell whether old Mibra Gulley ought to have 
brought this action before the Clerk or in term ? I must say 
that I have not as much respect for the Trustees as I had 
before the degree was conferred." (See 81 N. G, 356.) 

For the encouragement of those twigs of the law whose 
early success is impeded by bashfulness — a rare quality, 
however, in these spouting days — permit me to state that, 
when Mr. Ashe made his first speech — it was at Hillsboro 
court — his fright was so great that his tongue refused to go 
further than " Gentlemen of the Jury." He was about to 
take his seat in despair, when Mr. Priestly Mangum, the 
County Solicitor, arose and said : " May it please your Wor- 
ships, I request the gentleman to stop a moment, to allow' me 
to call some witnesses to go before the Grand Jury." This 
kindly interruption gave the young attorney time to recover 
his self-possession, and he made a creditable appearance. 

Judge Dillard, recognized as one of our ablest lawyers, told 
me that his (Dillard's) first case was io Danville, Va., where 
the pleadings were required to be drawn out in full. He 
declared on a promissory note, " payable 90 days after date." 
These words were carelessly omitted in his declaration, and 
the consequence was a fatal variance in the proof. Said the 
Judge: " I took a nonsuit, paid the costs ($13.50) out of my 
own pocket, and got more profit out of that expenditure 
than out of any I have since made. I was afterwards care- 
ful never to make a mistake." I feel sure the Judge will 



History of the Supreme Court. 69 



pardon me for putting on record this incident, on account 
of its valuable lesson to those whom he loves so well, the 
young men of the bar. 

Mr. Chief Justice: In conclusion I return to you and your 
associates, and to the members of the bar, my thanks for the 
great honor you have conferred on me in assigning to me 
the preparation and delivery of this address. It has been 
to me a labor of love. From boyhood I have had the 
strongest veneration for the Supreme Court of North Carolina. 
Far back in my memory, on the borderland of childhood, 
in the days of Devereux and Battle, I can see the neatly 
written copies by my mother, as amanuensis, of the opinions 
of Ruffin, Daniel and Gaston, and I can recall her voice as 
she praised their greatness and by these praises sought to 
arouse the ambition of her children. A collateral benefit of 
the establishment of the Court has been the elevation of the 
bar of the State, by tlieir constantly having before their 
eyes the highest standard of legal learning, tireless industry, 
and inflexible rectitude. The labors of the students are 
stimulated by the hope of winning' the encomiums of the 
examining judges, the labors of the lawyers are stimulated 
by the hope of winning the decisions of the Court, the Supe- 
rior Court Judges are urged to greater diligence and care by 
fear of the r reversals. The aspiring spirits fix their eyes 
on the lofty prize of a seat on the Bench, and, thanks to a 
justice-loving people, strive to gain it, not by the politican's 
wiles, but by becoming conspicuous for legal learning and 
spotless character. It is a glorious thing that all our people 
have an assured confidence that the mantles of our great 
and good judges of the past have fallen on men worthy to 
wear them, on men who will leave the Court to their suc- 
cessors, fixed in the hearts of the people, as firmly as are the 
eternal principles of Magna Charta and the Bill of Rights, of 
which it is the trusty guardian. 



70 History of the Supreme Court. 



APPENDIX No. 1 



List of Judges from 1777 to 1st January, 1819. 

The First Period, 

Begins in 1777 and ends in 1790,,during which the number 
of the Judges was three. 

Samuel Ashe, of New Hanover, elected in 1777, was in 
office in 1790. 

Samuel Spencer, of Anson, elected in 1777, was in office 
in 1790. 

James Iredell, of Chowan, elected in 1777, resigned in 
1778. 

John Williams, of Granville, elected in 1778, was in office 
in 1790. 

The Second Period, 

From 1 790 to 1806, when there were four Judges. 

Samuel Ashe, elected in 1777, resigned in 1795. 

Samuel Spencer, elected in 1777, died in 1794. 

Jno. Williams, elected in 1778, died in 1799. 

Spruce McKay, of Rowan ; elected in 1790, was in office in 
1806. 

Jno. Haywood, of Halifax ; elected in 1794, resigned in 
1800. 

David Stone, of Bertie; elected in 1795, resigned in 1798. 

Alfred Moore, of Brunswick; elected in 1798, resigned in 
1799. 

Jno. Louis Taylor, of Craven ; elected in 1798, was in office 
in 1806. 

Samuel Johnston, of Chowan ; appointed in 1800, resigned 
in 1803. 



History of the Supreme Court. 71 



John Hall, of Warren ; elected in 1800, was in office in 
1806. 

Francis Locke, of Rowan; elected in 1803, was in office 
in 1806. 

The Third Period, 

From 1806 to January 1, 1819, when there were six Judges. 

Spruce McKay, of Rowan ; elected 1790, died 1808. 

John Louis Taylor, of Craven ; elected 1798, elected to 
Supreme Court in 1818. 

John Hall, of Warren ; elected 1800, elected to Supreme 
Court in 1818. 

Francis Locke, of Rowan; elected 1803, resigned 1814. 

David Stone, of Bertie ; elected 1806, resigned 1808. 

Samuel Lowrie, of Mecklenburg ; elected 1806, died 1817. 

Blake Baker, of Warren ; appointed 1808, commission 
expired 1808. 

Leonard Henderson, of Granville; elected 1808, resigned 
1816. 

Joshua Granger Wright, of New Hanover; elected 1808, 
died 1811. 

Henry Seawell, of Wake; appointed 1811, commission 
expired 1811. 

Edward Harris, of Craven; elected 1811, died 1813. 

Henry Seawell, of Wake; appointed in 1813, resigned 1819. 

Duncan Cameron, of Orange ; appointed 1814, resigned 
1816. 

Thomas Ruffin, of Orange,; elected 1816, resigned 1818. 

Joseph John Daniel, of Halifax ; appointed 1816, elected 
to Supreme Court 18i^. (3 

Robert H. -Baker, of Lincoln; appointed 1818, resigned 
1818. ®"^ L<n\ 

Blake Baker, of Warren; appointed 1818, died 1818. 

The fourth period, as given in Second Revised Statutes, 
embracing the names of the Superior Court Judges since 
1818, does not come within the scope of my narrative. 



72 History of the Supreme Court. 



APPENDIX No. 2. 



List of Judges of the Supreme Court Since 1818. 

The First Period. 

John Louis Taylor,. of Craven, Chief Justice; elected 1818, 
died January, 1829. 

Leonard Henderson, of Granville, Chief Justice, 1829 to 
1833; elected 1818, died August, 1833. 

John Hall, of Warren ; elected 1818, resigned December,. 
1832. 

John DeRosset Toomer, Cumberland ; appointed June, 
1829, resigned December, 1829. 

Thomas Ruffin, of Orange, Chief Justice, 1833 to 1852; 
elected 1829, resigned November, 1852. 

Joseph John Daniel, of Halifax ; elected 1832, died Feb- 
ruary, 1848. 

William Gaston, of Craven ; elected 1833, died January, 
1844. 

Frederick Nash, of Orange, Chief Justice, 1852 to 1858; 
appointed May, 1844, died December, 1858. 

William Horn Battle, of Orange.; appointed May, 1848,. 
resigned December, 1848. 

Richmond Mum ford Pearson, of Yadkin, Chief Justice, 
1858 to 1865 ; elected December, 1848, office vacated April, 
1865. 

William Horn Battle, of Orange; elected December, 1852, 
office vacated April, 1865. 

Thomas Ruffin, of Orange ; elected 1858, resigned fall of 
1859. 

Matthias Evans Manly, of Craven; appointed 1859, office 
vacated April, 1865. 



History of the Supreme Court. 73 



The Second Period, 

From January, 1866, when the Judges elected by the 
General Assembly, organized by the authority of the Presi- 
dent, began their service, to the close of June Term, 1868, 
when their offices were vacated by virtue of the Reconstruc- 
tion Acts of Congress. 

Richmond Mumford Pearson, of Yadkin, Chief Justice; 
elected 1866, office vacated July, 1868. 

William Horn Battle, of Orange ; elected 1866, office 
vacated July, 1868. 

Edwin Godwin Reade, of Person; elected 1866, office 
vacated July, 1868. 

The Third Period, 

From July 1, 1868, when the Justices under the Constitu- 
tion of 1868 began service, to 1879, when the number was 
reduced from five to three. 

Richmond Mumford Pearson, Chief Justice; elected 1868, 
died January 5, 1878. 

Win. Nathan Harrell Smith, of Wake, Chief Justice; 
appointed January, 1878, term expired January 1, 1879. 

associate justices. 

Edwin Godwin Reade, of Person; elected 1868, term 
expired January 1, 1879. 

Wm. Blount Rodman, of Beaufort; elected 1868, term 
expired January 1, 1879. 

Robert Paine Dick, of Guilford; elected 1868, resigned 
1872. 

Thomas Settle, of Rockingham; elected 1868, resigned 
1871. 

Nathaniel Boyden, of Rowan ; appointed 1871, died Novem- 
ber 20, 1873. 
6 



74 History of the Supreme Court. 



Wm. Preston Bynum, of Mecklenburg; appointed 1873, 
term expired January 1, 1879. 

Thomas Settle, of Rockingham; appointed 1872, resigned 
1876. 

Wm. Turner Faircloth, of Wayne; appointed 1876, term 
expired January 1, 1879 

The Fourth Period, 

From January 1, 1879, to January 1, 1889, during which 
the number of Justices was three. 

Wm. Nathan Harrell Smith, Chief Justice ; elected 1878, 
re-elected 1886. 

ASSOCIATE JUSTICES. 

Thomas Samuel Ashe, of Anson; elected 187*, re-elected 
18S6, died February 4, 1887. 

John Henry Dillard, of Rockingham ; elected 1878, resigned 
February 11,1881. 

Thomas Ruffin, of Orange ; appointed 1881, resigned 1883. 

Augustus Summerfleld Merrimon, of Wake; appointed 
September 29, 1883, elected 1886 

Joseph Jonathan Davis, of Franklin ; appointed February 
4, 1887, elected 1888. 

Alphonso Calhoun Avery, of Burke; elected 1888. 

James Edward Shepherd, of Beaufort ; elected 1 888. 



History of the Supreme Court. 75 



APPENDIX No. 3. 



List of Reporters of Cases Decided Prior to Jan- 
uary, 1819. 

Judge John Haywood, from 1789 to 1806 (1st and 2d Hay- 
wood Reports). 

Judge F. X. Martin, from 1795 to 1797 (1st and 2d Martin's 
Reports). 

Judge John Louis Taylor, from 1799 io 1802 (Taylor's 
Reports). 

Duncan Cameron and William Norwood, from 1802 to 
1805 (Conference Reports). 

Judge John Louis Taylor, 1813 to 1816 (Carolina Law 
Repository, 2 vols.). 

Judge John Louis Taylor, 18 L6 to 1818 (Term Reports). 

Judge A. D. Murphy, 1804 to 1813, and at July Term, 
1818 (1st and 2d Murphv). 



APPENDIX No. 4 



List of Reporters Since 1818. 

Archibald D. Murphy, 1819 (3 Murphy). 

Thomas Ruffin, January Term, 1820 (1st part of 1st 
Hawks). 

Francis L. Hawks, 1820 to 1826. 

Geo. E. Badger, with Devereux, January Term 1826 (1st 
part of 1st Devereux) 



76 History of the Supreme Court. 



Thomas P. Devereux, 1826 to 1834. 

Thos. P. Deverex and Wm. H. Battle, 1834 to 1840 

Wm. H . Battle, January Term, 1840, (1st part of 1st Iredell ). 

James Iredell, 1840 to 1852. 

Perrin Busbee, 1852 to 1853. 

Quentin Busbee, Fall Term, 1853 (2d part of Busbee). 

Hamilton C. Jones, 1853 to 1863. 

Patrick II. Winston, Sr , 1863 to 1864. 

8amuel F. Phillips, 1866 to 1870. ■ 

James M. McCorkle, 1871. 

Wm. M. Shipp, Attorney General, 1872. 

Tazewell L. Hargrove, " " 1873—1876. 

Thos. S. Kenan, " " 1877—1884. 

Theo F.Davidson, " " 1885. 



^II T T HH TIT TIHi;TmiTt»ttHItlTIir 



AN ADDRESS 



I History of the Supreme Court, 



IlELIVEREf) IN THE 



Hall of the House of Representatives, February 4TH, i\ 
at the Request of the Members of the Court and of 
the Bar, in Commemoration of the First Occu- 
pancy by the Court of the New Supreme 
Court Building, March 5TH, 1888. 



By Hon. KEMP P. BATTLE, IX. D., 

President of the University of North Carolina . 



RALEIGH: 

Edwards & Broughton, Printers. 

1889. 



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